Skip to main content

Full text of "A Judiciary in Crisis, Trial of Zulfikar Ali Bhutto"

See other formats

A Judiciary in Crisis? 

The Trial of 
Zulflkar Ali Bhutto 

Reproduced by 

Sani H. Panhwar 

Member Sindh Council PPP 

A Judiciary in Crisis? 

The Trial of Zulfikar AH Bhutto 


T.W. Rajaratnam 

Madras, September 1988 

Reproduced by: 

Sani H. Panhwar 
Member Sindh Council, PPP 

Judiciary in Crisis? Copyright © 

The author is a former Judge of the Supreme Appellate Court of Sri Lanka and had been 
a Commissioner of Assize presiding over many murder trials before a Jury. 

He is a Barrister-at-law (Lincoln 's Inn). He has practised at the Bar in Sri Lanka as an 

Advocate for 22 years and has been a Judge for 8 years. He is a graduate in Western 

classics of the University of London. He has also been a teacher and a writer. 

Judiciary in Crisis? Copyright © 





A brief life sketch of Zulfikar Ali Bhutto 

A picture of the events in Pakistan during the 
Bhutto regime (1971 - 1977) 

V A synopsis of the case 

VI A synopsis of the case against Bhutto 8- the main legal questions 

VII The classification of the evidence against Bhutto and comments 

VIII Masood Mahmood 

IX Events & Comments on the High-Court trial. 

X The Supreme Court and the appeal 

XI Clemency, appeals, the execution and thereafter. 

XII Some comments 



Events in Pakistan after the promulgation of Martial Law (1979 - 1979) 16 
The killing of Nawab Muhammad Khan and the aftermath. . . 23 


Judiciary in Crisis? Copyright © 


The winds of change were blowing over three countries in South Asia. In India, the 
Janatha Government led by Moraji Desai replaced Indira Gandhi's Government on the 
24th of March 1977 after a general election. In Pakistan, Bhutto's Government was 
thrown out by General Zia-Ul-Haq after a military coup, on the 5th of July 1977. The 
United National Party led by Junius Jayewardene took over power from Srirnavo 
Bandaranaike in Sri Lanka on the 24th of July 1977 after her party was defeated by a 5/6 
majority on the 21st of July 1977 at a general election. 

While the changes in India and Sri Lanka were effected by democratic processes, in 
Pakistan it was a coup followed by the promulgation of Martial Law which totally and 
completely extinguished all vestiges of a democratic system. 

Jayewardene's government was a frighteningly strong government with an utterly weak 
opposition, but the Government of Moraji Desai was a weak one composed of warring 
factions. In each of these countries the Judiciary inevitably found itself in changed 
situations. The governments in Sri Lanka and India, capitalised on the blunders of their 
predecessors whose pro-socialist and anti-American stances encountered many storms 
compelling each to resort to an emergency rule. In Pakistan, however, Bhutto's land 
reform, his economic and foreign policies made many enemies from vested interests. 
There were decisive changes in the policies of the new governments. 

In all these 3 countries there was a swing to the extreme right. The Janatha government, 
however, made a quick exit and the Judiciary in India did not face much of a crisis in the 
Janatha set up. The new governments in Pakistan and Sri Lanka continue to last to this 

The Judiciary in Pakistan was called upon to try Bhutto on a murder charge of which he 
was found guilty in a most disturbing political context. The reader of this book will have 
to answer the question after examination of the events in the Bhutto Trial whether the 
Judiciary faced a crisis and if so, whether it survived the crisis? 

In Sri Lanka, in a totally democratic context the Judiciary was called upon to inquire into 
the allegations of abuse of power by Mrs. Bandaranaike, an offence unknown to the law 
till the Presidential Commission Act and not defined even then. She was found guilty of 
such abuse and she was ultimately deprived of her civic rights by Parliament. There was 
much controversy about the findings of the Presidential Commission and its decision 
which led to her being driven into the political wilderness. Whether the Judiciary in Sri 
Lanka faced a crisis and if it did in any manner, whether it faced up to it are questions not 
within the scope of this book. The sole objective of this book is to reveal the Trial and 
Appeal of Zulfikar Ali Bhutto in the then prevalent and surrounding circumstances and to 
focus attention on the performance of the Judiciary in Pakistan. 

Judiciary in Crisis? Copyright © 4 

The trial of Zulfikar Ali Bhutto was before five judges of the High Court and they were 
unanimous in their decision to find Bhutto guilty but it was only in appeal that the judges 
of the Supreme Court were divided 4 to 3. It was very unfortunate that although all nine 
judges of the Supreme Court commenced hearing the appeal, one judge Quaisar J., retired 
from the Court after he reached the age of retirement and another judge Waheeduddin J., 
was incapacitated from functioning on the Bench having suffered a cerebro -vascular 

It is sad to note that he suffered this stroke at the tail end of the hearing of the appeal. The 
appeal commenced on the 20th of May 1978 and the judge fell ill on the 20th of 
November 1978. The Court waited three weeks for the judge's recovery and when that 
was not to be, it resumed the hearing which concluded on the 23rd of December 1978. 
The judgements were delivered on the 6th of February 1979. Well, one judge made all 
the difference. There was that one judge and he could have been the Chief Justice, 
Anwarul Hag whom Bhutto objected to hearing his appeal for the reasons, 

1 . that he had publicly criticized Bhutto's Government and party and 
declared General Zia "A National Saviour"; 

2. that he was closely associated with the Chief Justice of the Lahore High 
Court who had found Bhutto guilty; 

3. that he had acted as Head of State during President Chaudhury' s absence 
abroad during the Martial Law regime and he had temporarily merged the 
military executive with the judiciary. 

Anyway, these objections were rejected by the Chief Justice as unfounded and based on a 
"misunderstanding" The Chief Justice reassured himself and all concerned that he was 
only one of nine judges who were going to hear the appeal. It happened however by a 
quirk of fate that Bhutto was ultimately hanged by one judge making all the difference. 
Was that one judge necessarily right and necessarily infallible when he joined the three 
who disallowed the appeal? 

Although the Bhutto Trial is the most notable trial of the century, it is a trial about which 
the least is known. It is not in the interests of justice for some to say Bhutto was guilty 
and for others to say that he was innocent without knowing the facts of the case. There 
are some who even say that whether Bhutto was guilty or not, he should never have been 
hanged. This is most unfair to Bhutto. Never during the appeal or thereafter did Bhutto 
ask for mercy. In fact, he had strictly instructed his lawyers and the members of his 
family that no such application should be made. The purpose of this book is to assist the 
people to answer that one question, "Was Bhutto proved guilty at the Trial?" And the 
next question, "Was there a fair trial without bias?" 

A considerably important part of the proceedings during the Trial was held in camera. 
The public was very often denied access. Newspaper reports were heavily censored and 

Judiciary in Crisis? Copyright © 5 

on many occasions publications of newspapers were stopped. There was Martial law and 
a Military Regime from the 5th of July during the investigation, during the Trial, during 
the Appeal and for a long time thereafter. What was still more unfortunate was the fact 
that the judgements of the Supreme Court ran to 709 pages heavily littered by a multitude 
of judicial decisions in other cases. The facts of these other cases occupy a considerable 
portion of the judgements. With great respect, it may be said that the judgements of the 
Supreme Court, except that of Haleem J., are far too learned and far too dependent on 
case law to support well established simple, principles of law. The learning of the judges 
was manifestly admirable and the hard work put in by them was patently clear and 
commendable but, unfortunately, the judgements had inevitably become far too heavy to 
serve any useful purpose for the understanding of the people. It will be an interesting 
question to ask how many members of the Bar had read these judgements. 

These judgements can give the wrong impression that the evidence was bulky and 
voluminous whereas the conviction was really based mainly on the testimony of Masood 
Mahmood, the Director - General of the Federal Security Force, who turned approver. He 
made his statement implicating Bhutto only in August 1 977 about the alleged incident of 
the killing of Kasuri' s father on the 10th of November 1974. His statement was obtained 
after promulgation of Martial law after this witness with other officers in the Security 
Services was taken into custody and kept in indefinite detention. One of the officers in 
custody sent a petition about all the misdeeds of Masood Mahmood. Under interrogation 
while in solitary confinement, the latter took up the position that he was only reluctantly 
carrying out Bhutto's orders as Prime Minister because he feared for his life and those of 
the members of his family. He played no direct role in the crime, he claimed. He was 
only a conveyor of an order to the second accused, Mian Abbas, and he was asked by 
Bhutto to remind Mian Abbas of the job already entrusted to him. Masood Mahmood is 
the star and the only direct witness for the prosecution to implicate Bhutto as the arch 
conspirator and instigator for the murder of his political opponent, Ahmad Raza Kasuri, 
which resulted unintentionally in the death of his father, Nawab Muhammad Khan, in 
November 1974. Masood Mahmood is the self-confessed criminal whose confession to 
save his own skin bought him a pardon. These facts cannot be disputed. On the other 
hand, the law does not reject him as a competent witness. The law even says that his 
evidence without corroboration can be acted upon. A rule of prudence, a rule of fairness, 
a rule of justice, a rule of commonsense, however, tells the judge, "Be cautious, test and 
examine his evidence even as you do the evidence of other witnesses but in the case of 
the testimony of a participant in the crime be all the more careful". 

In this particular case, Masood Mahmood stood to gain by admitting and avoiding, by 
confessing and implicating Bhutto who it cannot be doubted was the prize quarry for the 
Martial Law regime. With regard to accomplices, the law says only what commonsense 
says, "Act on the accomplice's evidence by all means. We do not prevent you from doing 
so, but if you are prudent and if you want to be fair, if you do not want your conscience to 
be stricken and if you do not want your judicial mind to be disturbed by second thoughts, 
we tell you to look for corroboration which in simple parlance means supportive evidence 
from an independent source which means from some source other than from the 
accomplice and which supportive evidence unmistakably implicates the accused in the 

Judiciary in Crisis? Copyright © 6 

crime". The law does not say anything more. It does not say anything less. It is most 
interesting how law and commonsense give the same guidance each based on principles 
of justice and fairness. 

There was the evidence of Kasuri, the son of the unintended victim. He was a bitter critic 
of the Prime Minister. On the 4th of June 1 974, he annoyed the Prime Minister and the 
latter shouted at him on the floor of the National Assembly, "I have had enough of you; 
absolute poison. I will not tolerate your nuisance". This is supposed to be motive for the 
Prime Minister to enter into a conspiracy to kill Kasuri. Certainly, it indicates that the 
Prime Minister was annoyed in the extreme with Kasuri, it can even show hostility and 
bad feelings but does this outburst and the fact that Bhutto counted him as his bitter 
political opponent necessarily prove a motive to kill? The killer can have a manifest 
motive or need not have a manifest motive. Motive by itself does not prove guilt nor does 
lack of a manifested motive prove innocence. Therefore, what is inconclusive by itself is 
not supportive evidence to corroborate an accomplice. This is an absolute commonsense 
principle. If it were otherwise a man who is the actual killer can shove the responsibility 
for the crime on another who is manifestly an enemy of the victim. If the motive is 
supportive evidence, then the actual killer's false evidence and the motive evidence can 
be acted upon to perpetrate a travesty of justice. Motive can only strengthen acceptable 
evidence but non-acceptable evidence does riot become acceptable evidence because of 
motive evidence. The commonsense principle is that motive or ill-feeling is by itself 
inconclusive, and it remains inconclusive to support the evidence of an accomplice who 
is totally unacceptable as a witness of truth. 

There is other evidence led by the prosecution of a circumstantial nature. Here again, 
commonsense tells what the law also tells. "Do not find an accused guilty unless the 
circumstances lead to only one inference and necessarily that only inference must be that 
the accused is guilty. All the circumstances must point the finger of guilt relentlessly, 
unmistakably and conclusively at the accused. The circumstances cumulatively must be 
unequivocally consistent with the guilt of the accused and must be inconsistent with any 
reasonable hypothesis of his innocence. It is only then that you can act on the 
circumstantial evidence to convict an accused". That is all the law says. 

It is seen, therefore, that the legal issues were confined to three matters - motive, 
accomplices and circumstantial evidence, not to speak of the presumption of innocence, 
proof beyond reasonable doubt and the demand made by the law that the benefit of a 
reasonable doubt must be given to the accused. These are all again commonsense 
principles based on justice and fairness to be complied with to help the judge to lead the 
rest of his life in quiet contemplation undisturbed by his conscience. The evidence of 
Masood Mahmood who is an accomplice, must therefore, be examined and there must be 
a search for the corroborative evidence. The latter evidence must be tested with the 
following question: 

1 . Can Masood Mahmood be believed without any reasonable doubt? 

Judiciary in Crisis? Copyright © 

2. Is there supporting evidence from an independent source to corroborate 
the approver, Masood Mahmood, that Bhutto was a conspirator in the 
alleged murder? 

3. Is the "supporting" evidence of such a convincing nature that the 
"supporting" evidence by itself convinces us that Bhutto was a conspirator, 
if Masood Mahmood' s evidence is unacceptable? 

4. If, on the other hand; it is acceptable, then, is the "supporting" evidence of 
such a nature that it supports the accomplice's evidence on material points 
incriminating the accused? This is only a requirement of prudence. 

It is a matter for comment that hundreds of cases were cited with detailed references to 
the facts of these other cases. It is sometimes a matter for thought whether justice can be 
done with so much borrowed wisdom. Has a judge to avail himself of all the King's cases 
and all the King's precedents? No one dare say that citing case law is a bad thing but it 
must not be overdone. It may lead to straining at gnats and swallowing camels or to miss 
the wood for the trees. No one will say that toast and marmalade is bad for breakfast. It is 
excellent but that does not mean that the marmalade should be daubed all over one's face. 

It is not with great respect intended to say anything disparaging of judges. It is said one 
does not think less of a judge because he has made a mistake nor does one think less of a 
mistake because it has been made by a judge. What has been expressed is only a view 
point and, perhaps, a judicial philosophy. 

All legal learning must be the unseen foundation for the seen structure of the law which 
reveals its majesty, its simplicity, its fairness, its justice and its beauty to be appreciated, 
respected and obeyed by the people. It is this and nothing else that contributes to the 
Majesty and the Rule of Law. It is not the learning, the pomp and pageantry of the judges. 
That does not mean that judges need not be learned in the law. It is most essential. It is 
the unseen foundation of judicial institutions. When the foundation and much of it is seen 
above the ground, it can only be said that the parties affected by the judgements and the 
people find it difficult to appreciate or share the knowledge and learning of the judges. It 
is a good thing when judges share their understanding of the law with the parties 
concerned and the public. 

The understanding of the law and its processes by the people is most important. It is for 
them alone that the law exists. In early times, God was feared rather than loved. The laws 
too were feared. The more the people found it difficult to understand the law, the more 
they were awestruck by the law. But the people now are becoming more inquiring and 
more rational. God has today to be loved and respected. Likewise, the laws too must be 
loved and respected. The laws are not some mumbojumbo. They are crystalised 
commonsense they say. The people want to understand them. No judgements, especially 
in criminal trials of public interest must be given above the heads of the people. True 
respect for the law and the rule of law will be more lasting if they co-exist with the 

Judiciary in Crisis? Copyright © 

understanding of the law. The presumption that every one knows the law has to be made 
a reality today. 

The case and the issues have been unfolded as best as possible and it is for the public to 
answer whether the prosecution proved that Bhutto was guilty of the crime, after a fair 
trial. It has not been an easy task to do this unfolding from the judgements and to find the 
needles in the haystack which occupied 709 pages of space! 

If the answers to the above questions are uniformly in the negative, what is the remedy 
for the people of Pakistan and the bereaved members of his family? How can they right 
this deadly wrong? If the answers are not an emphatic and categorical 'yes' even then 
Bhutto was denied justice. If the answer is an emphatic, positive and categorical 'yes' 
well then justice has been done and no tears need be shed. 

It is not the common run of men alone, it is said, whose deeds are balanced with their bad 
on the Great Day of Account. When this life's land marks vanish, judges too like 
ordinary mortals will be helpless as moths having to account for their deeds on earth. The 
words of Abu Bakr, the great saint and the First Caliph of Islam may be recalled. He said 
when he saw a dove in the shade of a tree in a garden "Happy Art thou, oh Bird. Thou art 
not called by God to answer for what thou hast done in this world. Would that Abu Bakr 
were like unto thee." 

Judiciary in Crisis? Copyright © 


This chapter and the following two chapters have been included for the sake of 
completeness, and for the greater interest of the reader. The information has been 
gathered for this and the following chapters mainly from Keesing's Contemporary 

Zulfikar Ali Bhutto was born on January 5th 1928. He was the son of Sir Shah Nawaz 
Bhutto. He hailed from a family of Rajputs originally belonging to a Hindu Warrior caste 
and they later became converts to Islam four centuries ago. They were wealthy 
landowners in Larkana in Sind. He went abroad for his higher studies. He proceeded to 
the University of California, Berkeley where he graduated in Political Science. Thereafter 
he obtained his higher degree with a distinction in Jurisprudence from Christchurch, 
Oxford. He was for some time a lecturer in International Law in the University of 
Southampton. He was called to the English Bar as a Barrister-at-Law from Lincoln's Inn 
in 1953. He returned to his country and practised as a lawyer in the West Pakistan High 
Court. He was married to Nusrat Bhutto and had two sons and two daughters one of 
whom was Benazir who was educated at Oxford. She was elected the President of the 
Oxford Union when she was studying there. She now heads her father's political party - 
the Pakistan People's Party. 

Bhutto entered politics and became Minister of Commerce in Ayub Khan's Cabinet in 
1958 and thereafter he served as Minister of Information and Minister of National 
Resources in 1960. He ultimately became the Foreign Minister. In 1966 having formed 
the Pakistan People's Party (P. P. P.), he resigned and went into the opposition. The 
policy of the P. P. P. was to establish Islamic Socialism promising Food, Clothing and 
Shelter for the people - "Roti, Kapra and Makan" . It stood for democracy and to end any 
military dictatorship. It also stood for an independent foreign policy. Bhutto played a 
leading role in the Student Revolt of November 1968 which was against Ayub Khan's 
regime. He was arrested and was in prison till February 1969. In the election of 1970 his 
party won by a large majority in what is now West Pakistan. It obtained its main support 
from Punjab and Sind winning 81 out of 138 seats. 

President Yahya Khan resigned on the 20th of December 1971 after the defeat of 
Pakistan on the Eastern Front and the ceasefire in the West in the war with India. He was 
succeeded by Bhutto who formed his Cabinet on the 24th of December 1971. When 
Yahya Khan resigned, Bhutto was representing his country in the United Nations in the 
debate on "India's aggression". He was called back and he made a triumphant return to 
Pakistan. He drove straight to the President's Palace amidst the enthusiastic cheers of 
thousands of his supporters. He was later sworn in as President and the Chief Martial 
Law Administrator, Bhutto thus became the 4th President of Pakistan and the first 

Judiciary in Crisis? Copyright © 


Civilian President. He held sway in Pakistan as President and later as Prime Minister with 
a democratic constitution which was introduced in 1973. He was the leader of Pakistan 
during this period till the promulgation of Martial Law on the 5th of July 1 977 when his 
government was overthrown by General Zia-ul-Haq. 

Bhutto's critics were of the view that he contributed to the dismemberment of Pakistan as 
Mujib-Ur-Rahman's party was the majority party in Pakistan but his supporters hold the 
view that this was inevitable and Bhutto saved West Pakistan from weakening itself 
further by the continuation of hostilities. He was, according to them, keen on 
consolidating West Pakistan into a new Pakistan to introduce a Democratic Constitution 
which he did in 1973. He stabilised West Pakistan and was responsible for many 
progressive measures. He nationalized many industries, banking and insurance. He 
introduced many economic and social reforms, stopped the flight of money abroad and 
cut down the privileges enjoyed by an exclusive class. He established friendly relations 
with India, the Soviet Union, China and the United States. He was described as being a 
dynamic, arbitrary young leader in a hurry. He published a book entitled, "The Myth of 
Independence". The title speaks for itself. 

The events thereafter with the promulgation of martial law in July 1 977 led to his trial on 
a charge of conspiracy to murder his political opponent Kasuri which resulted in the 
death of the latter' s father Nawab Muhammad Khan in November 1974. He was 
convicted with four others. His appeal was dismissed by a majority judgement of the 
Supreme Court (4 to 3) and he was hanged in Rawalpindi Prison at 2 a.m. on the 4th of 
April 1979. 

We must also mention that he went to the polls in March 1977 and his party the P. P. P. 
won by an overwhelming majority but there were allegations that the elections were 
rigged and a lot of unrest was created in the country ultimately resulting in General Zia 
seizing power in July 1977. Zulfikar Ali Bhutto made many enemies among the 
privileged classes with vested interests. 

Le Monde commenting on his career has stated, "Mr. Bhutto was disgraced because as an 
autocratic reformer he had introduced many progressive measures, nationalising large 
sections of industry and banking, insurance and the agricultural processing industry and 
had attacked the concentration of economic power symbolically represented in Pakistan 
by the "the 22 families" which are closely linked with the higher ranks of the 
administration and the army - the country' s principal institution which has held power 
for most of the time. His social policy, a bold one for a backward country (a minimum 
wage, health insurance, bonuses and worker's participation, old age pension for workers) 
made him fiercely hated by the employers, but he made the workers and peasants 
conscious of their rights. For the latter, the agrarian reform represented a great 
experiment, for it envisaged a less unjust distribution of landed property, the source of 
wealth and local power, even though evasion as possible. The fall of the P. P. P. 
Government endangered the implementation of these reforms. Infinitely more conscious 
than his predecessors of the realities of the contemporary world, Mr. Bhutto wished to 
transform the society of his country and spare it a revolution, whereas the two military 

Judiciary in Crisis? Copyright © 1 1 

regimes which preceded him in power had favoured the development of the private 
industrial sector and large scale capitalist agriculture with the help of considerable 
amounts of foreign aid, deliberately increasing social inequality General Zia's policy is 
not very different..." 

Judiciary in Crisis? Copyright © 12 


THE BHUTTO REGIME (1971-1977) 

This Chapter as stated earlier had been included to give a rough idea of the main events 
during the Bhutto regime. The author is no more than a chronicler and acknowledges his 
debt to Keesing's Contemporary Archives for the information. It has not been the 
objective of this book to deal with the politics of Pakistan either between 1971 to 1977 or 
from 1977 to 1979. There has been no study as such of the politics in Pakistan and there 
has been no first hand information to express any considered views especially to the 
people of Pakistan who know best with their experience and knowledge of the politics of 
Pakistan within the last 15 years. This book has, as its main objective, a review of the 
legal and judicial processes that led to the execution of Zulfikar Ali Bhutto. It would have 
been incomplete to deal with the trial and appeal in vacuo so to say. It is necessary to 
remind the reader of the main political events that were taking place at that time. No one 
can deny the political aspects and the political features relevant to the trial. The 
prosecution alleged that there was a political motivation for the crime. Bhutto alleged that 
there was a political motivation for the prosecution. In this situation, there must be an 
awareness of the political events in the country for greater understanding and interest. 

Bhutto sent into retirement many high ranking members of the Army and Navy including 
Yahya Khan who was placed under house arrest. He described most of them as the "Fat 
and flabby Generals". He replaced the four Military Governors of the four provinces of 
Sindh, Punjab, Baluchistan and the North West Frontier with civilians. He appointed a 
Commissioner to inquire into the Pakistan defeat. He abolished the privy purses and 
privileges of the former princes. He had decided to set up a democracy and introduced 
many political, social and educational reforms. He pledged that Martial Law would 
continue but "not one second longer than necessary". He formed a cabinet of talented 
persons among whom was Dr. Abdus Salaam who won the Nobel Prize for Physics. Dr. 
Salaam was the Minister of Science, Technology and Production. He appointed Mr. 
Yahya Bhaktiar as Attorney General who was to later appear for him in the Supreme 
Court. Many were the changes made, many were those removed from their high posts and 
perhaps many were the seasonal friends and lasting enemies he naturally made. He 
commuted all death sentences to life sentences. He abolished whipping and remitted 
sentences passed by the military courts. He did not draw any salary as President and ruled 
that officers in future must travel economy class on official business. These ambitious 
policies and reforms introduced by Bhutto to establish a democracy and to remove 
entrenched privileges, his policy of nationalization and his desire to achieve all this in a 
short time led to his earning the hostility of vested interests at home and abroad. He took 
a perilous course and it is to his great credit that he was able to do so much and survive so 
long. His policies affected the top ranking generals and officers of the Army but he had to 
depend on a security force. The Federal Security Force was inaugurated by statute in 

Judiciary in Crisis? Copyright O 13 

1972-73. It certainly became a strong arm of the Government. There was severe criticism 
against this Force and its Director General and questions arose whether this Force was 
necessary in the circumstances and how far and how successful the Government was able 
to control and contain its actions. Bhutto qualified himself, no doubt, for the assassin's 
bullet with so many out for his blood and destruction but there was a more cruel fate 
perhaps that awaited him. If the Judiciary conformed to the principles of justice and 
fairness there can be no complaint. If it had not done so, then the whole judicial system 
stands condemned. Mercifully, these are questions and issues not for the author to answer 
but sadly and posthumously for the reader to answer, after the consideration of the case 
and the main findings in the judgements which are presented in this book. 

Quite apart from his reforms programme which was working ahead of schedule he had to 
face pressing problems and among them were: 

(1) Relations with India, 

(2) Repatriation of Bengalis in West Pakistan and non-Bengalis in Bangladesh, 

(3) Recognition of Bangladesh, 

(4) Repayment of East Pakistan's share of debt amounting to Rs. 900,000,000 

(5) The hangover from Pakistan's defeat, 

(6) The capitalist's reaction to social and economic reforms and land distribution, 

(7) Flight of capital abroad, 

(8) Repatriation of foreign investments of locals, 

(9) Taxation of the rich, 

(10) Elimination of national and international rackets which were bigger than expected, 

(11) Control of basic industries 

(12) Building of a new economy to give the people a new fair deal, 

(13) Guerilla warfare in Baluchistan, 

(14) Problems with Wall Khan and his National Awami Party, 

(15) The demand of the Afghan Government for self determination for Baluchistan and 

(16) Terrorist activity in the other provinces and the opposition by the Sardars over the 
control of land ownership, 

(17) The last ditch resistance and struggle of the tribal feudal authorities against reforms, 

(18) The opposition by all vested interests and the fundamentalists, 

(19) The rivalries among "friends" and the hostility of the enemies of the government, 

(20) The resentment of the military old guard and their families, and 

(21) The hostility of foreign collaborators. 

These were just some of the problems. Bhutto had inevitably raised a hornet's nest. On 
the one hand he had the dynamism, the energy, the brilliance, the confidence and the 
determination to implement the policies of his party and give a sense of dignity to his 
people. On the other hand it needed the powers of a superman to solve so many problems 
and introduce lasting reforms. Was he allowing the Federal Security Force to get out of 
control? Was he creating a Frankenstein Monster? Was all this inevitable? These are 
questions that arise for examination. 

Judiciary in Crisis? Copyright © 14 

The power of money more often than not overtakes and vanquishes the power of the 
people. The people are many and their power is diffused. It takes time to harness it. The 
power of money is concentrated in a few and it is closely knit when the few realize they 
are losing all their privileges. They have got the means to corrupt and to organize their 
strategies. This pattern was not different in Pakistan. An assassination of Bhutto would 
have aroused the people and his martyrdom would have fired the imagination of the 
people. Was he therefore hanged having been given the bad name of a murderer? If so, it 
was diabolical. 

Further, could Bhutto have carried on with the implementation of his policies for more 
than five years preserving all the democratic processes of a 5 star democracy, such as the 
independence of the judiciary, the independence of the press and all the constitutional 
freedoms? Was that possible? If there was erosion in these areas, whom will history 
condemn? The man who had a purpose and a vision to give a new deal to his people and 
who in fact gave there so much within five years in a country without any recent 
democratic traditions or the few powerful men with money power or gun power who did 
not want to lose their privileges but wanted a continuation of the oppression and 
subservience of their people? Did they have a moral right to obstruct and impede, delay 
and frustrate progress? Were they selfless or selfish? In the same way, was the 
Government of Bhutto sincere and selfless in their socialist programme? These questions 
will be answered by history in the near future. Why did Anwarul Haq, he Chief Justice, 
hail General Zia as a "National Saviour"? Why did the nine judges of the Supreme Court 
on the 10th of November 1977, after they had taken a new oath on the 23rd of September 
1977 which omitted the paragraph with the words that they once swore earlier to, 
"Preserve, protect and defend the Constitution", hold that the constitutional and moral 
authority of Mr. Bhutto's Government had completely broken down? This was the 
observation in the Habeas Corpus application presented by Begum Nusrat Bhutto. 

Whether they were right or wrong in this observation when they agreed with Anwarul 
Haq C.J., who wrote the judgement after his appointment as Chief Justice about six 
weeks earlier, this observation must be examined, but it need not be done in this book. 
Their order validated the Martial Law regime on the Doctrine of Necessity. They held 
that since law and order had broken down, the Martial Law regime was a necessity for a 
democratic regime to be set up again after an early election. 

For purpose of this book, it is sufficient to say that it was unfortunate that the Chief 
Justice had to say all this and then preside in the Appeal Court which heard the appeal of 
Bhutto. On the question whether justice appeared to have been done, certainly it does not 
appear to have been done. But the remaining question whether justice was done is still a 
question open to the people for their answer. They will be the Gentlemen of the Jury. 

Judiciary in Crisis? Copyright O 15 




This Chapter is to aid the reader to relate the undisputed events in the country with the 
relevant dates with the undisputed events relating to Bhutto's case. This will help the 
reader at a glance to fix the events in Court in relation to the political context in Pakistan. 
Here again, it is only a chronicle of the events without comment. It cannot be said that 
there is no thunder in silence nor can it be denied that silence sometimes can be eloquent. 

5-7-1977 Promulgation of Martial Law. General Zia-Ul-Haq, the Army Chief of Staff 
becomes the Chief Martial Law Administrator. 

Officers of the Federal Security Forces including Masood Mahmood, Director General 
taken among others into custody. He is kept in a Mess at Rawalpindi and later taken to 
Abbotabad where he was kept till mid August 1977. Main Abbas, Ghulam Mustapha, 
Arshad lqbal, Iftikar Ahamad also taken and interrogated along with Ghulam Hussain. 
They later are made 2nd, 3rd, 4th and 5th accused respectively. Ghulam Hussain later 
becomes approver along with Masood Mahmood. 

14-8-1977 Masood Mahmood addresses Chief Martial Law Authority making a clean 
breast of the misdeeds of the F.S.F., "ordered by Bhutto". 

3-9-1977 Bhutto arrested on charges of conspiracy to murder. Flown to Lahore, Bhutto 
arrested and in detention. 

6-9-1977 General Zia in an interview with .he New York Times says that he had 
personally authorised Bhutto' s arrest. States that he had no knowledge of "What type of 
leader we had. Mr. Bhutto was a Machiavelli in 1977... an evil genius running the country 
in more or less Gestapo lines, misusing funds, blackmailing people, detaining them 
illegally and even perhaps ordering people to be killed". He speaks of a secret document 
he has seen. 

12-9-1977 Bhutto formally indicted. He maintains he has been "framed" 

13-9-1977 Justice Sandani of the Lahore High Court gives bail and releases Bhutto. 

15-9-1977 General Zia makes a statement to the Urdu Digest in which he calls Bhutto, 
"A cheat and a murderer". He also says on the available evidence, he will not be able to 
escape severe punishment. 

Judiciary in Crisis? Copyright O 16 

17-9-1977 In a Broadcast statement General Zia says that he is giving complete freedom 
to the judiciary and press. He will hold the general elections, which he promised within 
90 days earlier, after the trial of Bhutto. He promises a fair inquiry to Bhutto. He says that 
the accused will be treated well and the Courts will give them a just trial. They are in 
custody on his orders, he admits. "Bhutto will be given every opportunity to defend 
himself and clear his name". Justice and democracy demand it. "His colleagues will be 
given the same opportunities". "The purpose is to give a verdict on their guilt or 
innocence before the elections. "The authorities were asked to give their verdicts before 
that. The inquiries were to start at once. 

18-9-1977 Demonstration and protests against arrests in Karachi, Lahore, Larkana and 
the surrounding villages. Demonstrations in London. 

19-9-1977 Demonstration and damage to rail tracks. Flogging of demonstrators by 
summary military courts. 

20-9-1977 Begum Nusrat Bhutto presents Habeas Corpus application in the Supreme 
Court challenging the orders of arrest of her husband as unconstitutional and illegal. 

A Court order for Bhutto to be brought from Karachi to Rawalpindi ignored by the 
Martial Law authorities. 

In the Habeas Corpus application in the Supreme Court the Government challenges the 
jurisdiction of the Court to question the order made by the Chief Martial Law 

22-9-1977 General Zia announces that the office of the Chief Justice had fallen vacant as 
C.J. Yakub Ali Khan continued in office after his normal retiring age. He was 
accordingly replaced by Anwarul Haq as Chief Justice. 

23-9-1977 The new Chief Justice takes oath of office with the other Supreme Court 
Judges omitting the paragraph in the oath laid down in the 1973 Constitution whereby the 


Supreme Court judges swore "to preserve, protect and defend the Constitution". The 
Supreme Court Judges from now on owed no allegiance to the 1973 constitution. 

24-9-1977 Bhutto's daughter Benazir under house arrest and Begum Nusrat Bhutto acting 
Chairman P. P. P. under surveillance. 

11-10-1977 The Bhutto Trial commences before a Full Bench of five judges of the High 
Court of Lahore, Mustaq Hussain C.J., Zakiuddin Pal, M.S.H. Qureshi, Aftab Hussain, 
Gulbaj Khan JJ. 

22-10-1977 Three hour speech by Bhutto in the Supreme Court in support of his petition 
for his release. If there is no constitution, it reverts to the Indian Independence Act of 
1947 and the Federation Units of Pakistan cannot be kept together. 

Reference Keesing's Contemporary Archives 

Judiciary in Crisis? Copyright O 17 

10-11-1977 The Supreme Court dismisses application for Bhutto's release and rejects the 
submissions about the unconstitutionality of the processes of the law. It holds that the 
imposition of Martial Law although an extra constitution step was validated by the 
"doctrine of necessity", as the constitutional and moral authority of Bhutto's Government 
had completely broken down. The Court took note of General Zia's pledge that elections 
would be held as soon as possible after the Trials and the Supreme Court expected that 
this pledge would be redeemed. 

Bhutto accuses "a Foreign Power" i.e., the United States of plotting his overthrow. It had 
first thought of putting up Air Marshal Asghar Khan but had later decided on General Zia 
"in the saddle" - in a statement submitted to Court. (2.11.1 977) 

13-11-1977 Bhutto ill. Not brought to Court from jail. Medical certificate produced - 
suffering from respiratory infection and gastritis, acute influenza with debility and high 

Hearing adjourned for 15-11-1977. But Court points to the provision that it can carry on 
in the absence of Bhutto as his Counsel is present. 

15-11-1977 Prof. Iftikar Ahamad, Secretary of Health, Government of Punjab examines 
Bhutto and reports that he is ill - acute influenza, temperature, debility with severe nasal 
and conjunctive congestion. 

Awan, Counsel for the appellant, applies for further adjournment on this account till such 
time his client recovers. Application refused. The Court, however, ordered him to cross 
examine Saed Ahamed Khan the witness in the box and and to seek instructions from his 

Bhutto ill, and hearing goes on regardless. 

25-11-1977 Bhutto writes to the Superintendent of Jail, Lahore that he is slightly better 
but cannot attend Court for five hours at a stretch 

26-11-1977 Kasuri called by the prosecution for further examination. Defence counsel 
expresses difficulty to cross-examine the witness in the absence of Bhutto. 

Court directs accused to be examined by a Board constituted by it. 

27-11-1977 Prosecutor informs Court that Bhutto refused to be examined by the Medical 
Board as he was not suffering from any organic disease. He only needed rest for a few 
days. Defence counsel says Bhutto will be able to attend Court on 3-12-1977. 

Between 13-11-1977 and 30-11-1977, 15 witnesses were examined and cross-examined. 

30-ll-1977The Federal Security Force disbanded. It is absorbed into the Police Force. 

Judiciary in Crisis? Copyright O 18 

7-12-1977 Kasuri' s cross-examination concluded in presence of Bhutto. 

14-12-1977 Bhutto ill again. Proceedings continue in his absence. 

15-12-1977 Bhutto appears in Court with a sore throat and with a severe relapse of his 
colitis and participates in the proceedings. 

16-12-1977 England vs. Pakistan Cricket match in Lahore. Begum Bhutto hit by someone 
in the crowd on the head. 

Fighting between the P.P. A. and P.N.A. 

17-12-1977 Incident in Court. Court wishes to sit through the winter vacation. Bhutto in 
trying to draw the attention of his Counsel - used the term "Damn it". Court rebukes him 
asking him not to use those words against his Counsel in Court. 

Bhutto taken out of Court. 

18-12-1977 Demonstrations. 

Nusrat Bhutto under house arrest. Mass Arrests. 

Transfer application by Bhutto. He requests that it be taken during the winter vacation. 

20-12-1977 Winter vacation for High Court - 20-12-1977 to 9-1-1978. 

5-1-1978 Democracy Day. 


9-1-1978 Bhutto's application for transfer dismissed after hearing in Chambers "in 

Bhutto cancels his Power of Attorney and instructions to his lawyers. 

Bhutto unrepresented thereafter. Takes no part in the proceedings. 

24-1-1978 The statement of Zulfikar Ali Bhutto recorded in open Court. 

He says he is not presenting his defence but confines himself to two issues - 

(1) Why this trial is taking place? why has this case been fabricated against 

(2) His lack of confidence in getting a fair trial and justice. 

25-1-1978 Disturbances outside Court. 

Judiciary in Crisis? Copyright © 


In camera proceedings in High Court. 

31-1-1978 Demonstrations and protests broken up by police. Some demonstrators 
flogged. Court announces that the proceedings will continue to be "/'« camera" to avoid 
possibility of disturbance during the proceedings. 

18-3-1978 Benazir under house arrest. 

All accused found guilty and sentenced to death. 

20-3-1978 Thousands demonstrate and protest. Running battles with police. 

Bhutto appeals to Supreme Court. 25-3-1978. 

22-3-1978 Lahore Press sealed. The edition of Musawat sealed and distribution stopped 
after publication of a letter of Bhutto to Bakhtiar describing the military authorities as 
"dirty, miserable and stinking men ". 

27-3-1978 Police raid the Musawat' s Karachi office and seize all copies containing 
reports of Bhutto's appeal to the Supreme Court. 

Foreign appeals for clemency to Bhutto keep flowing in after 18-3-1978 from Egypt, 
Libya, Tunisia, Algeria, Turkey, Iran, Yemen, U.A.E., Oman, Qatar. Col. Gadaffi warns 
Zia that he is prepared , to go personally to Pakistan to rescue "his friend and brother in 
Islam", Mr. Bhutto. Turkish Premier offers asylum. Appeals from Rumania, Greece, 
Australia and U.N. Secretary General Kurt Waldheim. British Government and USA 
silent. Chinese Ambassador' pleads for Bhutto's life. 

1-4-1978 Flogging of demonstrators. 

Supreme Court rejects application of Bhutto for relief from conditions in death row. His 
counsel, the former Attorney General, described the place as horrible and insanitary. 
Hearing of appeal fixed for 6th of May and the Court rejects request for two months' time 
to prepare case. Later postponed to 20th May. 

12-4-1978 Editors of newspapers Sadaqat arrested. Zia observes at a press conference, 
"One or two more public hangings will bring saboteurs to their senses". 

Elections postponed. 

Bhutto's appeal has commenced. 

Pakistan goes on reverse gear now. Former owners get back their rice husking units 
which had been nationalised. State controlled industrial sectors denationalised. Foreign 
banks allowed setting up branches in Pakistan. Constitutional guarantees considered 

Judiciary in Crisis? Copyright © 


against nationalisation and take over of properties. Favourable atmosphere for investment 

14-8-1978 President Chaudhury resigns after his five year term. General Zia is sworn as 

July 1978 - 1979 while Bhutto's appeal is being heard, white Papers are published and 
distributed both in Pakistan and abroad about all the misdeeds, corruption etc. during 
Bhutto' s regime - also about how he used the Federal Security Force as his personal 
Gestapo, and also his interference with the freedom of the press and the independence of 
the judiciary. 

Bhutto replies in a statement of 80,000 words submitted to the Supreme Court denying 
the allegations against him in the White Papers. He said, "We did not flog journalists, nor 
did we steal the printing presses of newspapers or stop publication of newspapers for a 
single day." 

6-2-1979 Bhutto's appeal rejected. Four judges convicting him while three judges 
including Haleem J. (later CJ.) acquitted him. 

10-2-1979 President Zia announces that Pakistan's legal system will be replaced by the 
traditional Islamic Code. 

Punishment: Lashes, stoning to death, amputation of right hand, amputation of left foot 
for 1st and 2nd offences and life sentence for 3rd offence. These sentences are for special 
offences. He introduces the Zakat, a 2.5 tax on wealth to be effective after July. 

24-2-1979 Bhutto's counsel presents a petition to the Supreme Court to review its 
judgement with the request that the two judges who dropped off be recalled. Refused. 

24-30-1979 Supreme Court rejects another petition about death sentence. The Supreme 
Court (all agreeing) stated that the matters in the petition were for the consideration of the 
executive exercising its prerogative of mercy. 

17-3-1979 Malik Ghulam Jilani's petition dismissed. He challenges the de jure authority 
of the President to deal with mercy petitions and questions the right of the Superintendent 
of the Prisons to implement the sentence of death before the mercy petition is disposed of 
by a de jure President. 

3-4-1979 Malik Ghulam Jilani's appeal, an inter Court appeal, dismissed. The grant of a 
certificate to appeal to the Supreme Court refused on the question of the de jure President. 
There was no time to appeal to the Supreme Court or take the matter up further. 

4-4-1979 Bhutto was executed and hanged at the Rawalpindi Prison at 2 a.m. His wife 
and daughter allowed to see him on 3-4-1979. Body flown to Larkana in Sindh. Buried 
there. Wife and daughter not allowed attending the funeral - under house arrest. 

Judiciary in Crisis? Copyright O 21 

Public announcement made nine hours later. Bhutto was not allowed the customary 48 
hours between the rejection of the mercy petition and execution. The sentence was 
carried out 2 V2 hours before the time provided for by prison regulations. 

Public announcement after Bhutto's burial in Larkana. 

Judiciary in Crisis? Copyright © 22 




Half an hour after midnight on the 11th of November 1974, Ahamad Raza Kasuri, an 
active Member of the Opposition in Parliament and a virulent critic of Bhutto and his 
government, was returning home in his car after attending a marriage ceremony in 
Shadman colony in Lahore. The other occupants of his car were his father Nawab 
Muhammed Ahamed Khan who was seated in front by the side of his son Kasuri who 
was driving. His mother and sister were seated behind. There were a number of shots 
fired from automatic weapons and bullets hit the car. The occupants except for Nawab 
Muhammad Ahamad Khan escaped unhurt. The latter was hit on the head. His son drove 
straight to the United Christian Hospital and admitted his fattier to hospital. He 
succumbed to his injuries at 2.55 a.m. The assailants were unidentified and unknown. 
Within minutes of the death of his father, Kasuri had in the first information report (F.I.R.) 
lodged by him asserted that the firing was really directed at him due to political reasons 
as he was a member of the opposition and was also the Information Secretary of the 
Tehrik-e-Istaglal which was strongly critical of government policies and that he himself 
had severely criticised the government. He added that in June 1974, Bhutto had addressed 
him on the floor of the House, when he had criticised him, thus, "You keep quiet. I have 
had enough of you; absolute poison. I will not tolerate your nuisance any more." Ahamad 
Raze Kasuri had retorted, "I cannot tolerate your style also." Bhutto then said, "I have 
had enough of this man. What does he think of himself." 

On the 4th of June 1974, the day after the incident in Parliament, Kasuri moved a 
privilege motion complaining that he was receiving "threatening calls to face the 
consequences after yesterday's altercation with Bhutto on the floor of the House." 

Kasuri had been a victim of several attacks and murderous assaults by his political 
enemies who wanted to liquidate him from 1972. There was an attempt to shoot at him in 
Islamabad in August 1974. He had received information that four or five persons were 
looking for him. He said his father was an innocent victim. 

The crime empties collected at the scene and found at Islamabad after the incident in 
August 1974 were of Chinese make of 7.62 m.m. calibre. The only two circumstances 
available for a lead with regard to the shooting in Lahore in November 1 974 were, 

(1) the reference to the incident in Parliament on the 3rd of June 1974 with no 
direct implication that Bhutto was a conspirator. 

(2) the make of the bullets and their calibre being similar to the bullets which 
were spent at Islamabad. Both these circumstances did not give a meaningful lead 
to the investigators. 

Judiciary in Crisis? Copyright © 23 

It was unthinkable for any investigator to question the Prime Minister because of 
circumstance No. (1). The proceedings of the Parliament proved the altercation on the 
floor of the House. This was more than five months earlier and Kasuri was no stranger to 
political enemies who had paid attention to him on many occasions earlier. As far as the 
similarity of the empties, it was found that this sort of bullets was available underground 
and also was officially issued not only to the Federal Security Force but to other Army 
units. No interrogations of the officers of the Federal Security Force or other Army units 
were done. There was a sort of stalemate. With hindsight, we know that it was during a 
Martial Law regime and it was with all the constitutional guarantees thrown aside that 
confessions were collected after long periods of indefinite detention and a case was filed 
against five accused among whom three had made statements fully implicating 
themselves. One had made a sort of confessional statement and he was made an accused. 
Two others, Masood Mahmood and Ghulam Hussain, made confessions and became 
approvers. All these could not have been done in 1974. There is therefore nothing 
necessarily sinister in the investigators not getting far with their investigations. On the 
other hand, an independent Tribunal of Inquiry was set up under Justice Shafi- Ur- 
Rahman, after the shooting in Lahore. 

There is no doubt that the Federal Security Force was riding high as a strong arm of the 
government and it was too much to expect the investigators to probe into the doings of 
the Force and equally it was too much to expect the members of the Force to cough out 
their guilt. 

In the beginning the Deputy Superintendent of Police, Ahad, was in charge of the 
investigations. He died in 1975. The case was handed over to Malik Waris of the Special 
Branch. In October 1975, the case was pigeonholed as untraced. 

Nearly three years after the incident at Shadman colony which resulted in the death of the 
father of Kasuri, two years and eight months to be exact, Martial Law was promulgated 
on the 5th of July 1977. The Federal Intelligence Agency was directed to inquire into the 
working of the Federal Security Force, to look into allegations of murder, kidnapping and 
breaking up of meetings. Many top ranking officers of the Force were taken into custody 
and among them were (1) Masood Mahmood, the Director General of the F.S.F. (2) Mian 
Abbas, the Director, Operations and Intelligence F.S.F. (3) Ghulam Mustapha, Inspector 
in the F.S.F. (4) Arshad lqbal, Sub-Inspector, F.S.F. and (5) Rana Ifthikar, Assistant Sub- 
Inspector, F.S.F. and (6) Ghulam Hussain, Inspector in the F.S.F. . 

Masood Mahmood and Ghulam Hussain earned their pardon and became approvers and 
the chief witnesses for the prosecution. Both of them had made confessions. Mian Abbas, 
Ghulam Mustapha, Arshad lqbal and Rana Iftikar also made confessions before 
magistrates. Bhutto's name was not directly mentioned implicating him in any of these 
confessions except in the confession made by Masood Mahmood who had been taken 
into custody on the 5th of July 1977 and made his confessional statement implicating 
Bhutto nearly 50 days later, over the killing of Kasuri 's father nearly three years earlier. 
Mian Abbas was made the 2nd accused at the trial over this killing. 

Judiciary in Crisis? Copyright © 24 

Ghulam Mustapha was made the 3rd accused at the trial. He was an Inspector in the 

Arshad Iqbal who was barely 21 years at the time of the incident three years earlier and 
was a Sub-Inspector in the Force (F.S.F.) was made the 4th accused at the trial. 

Rama Iftikar who was also barely 21 years at the relevant time and was an Asst. Sub- 
Inspector was made the 5th accused. The second, third, fourth and fifth accused were all 
from the F.S.F. 

The 1st accused, of course, was Zulfikar Ali Bhutto, the Prime Minister. 

Masood Mahmood and Ghulam Hussain, it was their luck, were made approvers. They 
too were from the F.S.F. The 1st accused referred to by the High Court in the judgement 
as the principal accused was the only outsider. 

The five accused were charged with conspiracy to murder Rasa Ahmad Kasuri and in the 
prosecution of which that they did cause the death of Nawab Muhammed Ahamad Khan 
on the 1 1th of November 1974. 


One wonders why so many shots were fired. It was a right-hand-driven car, and the 
assailants were firing from the right. 24 empties were picked up at the scene. Four men 
were on the job. The deceased received the fatal injury on the top right side and back of 
left side of the head. It was a stellate fracture mainly in the frontal parietal region of the 
skull (pare 9 H.C. judgement and para 6 of the Appellate judgement). On opening the 
abdomen the stomach was found empty. 

One wonders why this killing, if entrusted to the F.S.F., should have taken so long and 
why the killing operation was so clumsy and complicated. Could it be that the assailants 
did not really intend to kill but fired indiscriminately and were not keen on killing just as 
it happened four months earlier in Islamabad? If so, they would have been only guilty of 
causing the death by a rash and negligent act. 

Anyway this was not focussed as their defence. This note has no relevance at this point of 
time. In any case, it remains only as a matter of curiosity and interest. 

Did the assailants, i.e., the 4th and 5th accused, fire at random only to satisfy their 
superiors that they obeyed their orders and without them having any intention to kill? 
Could it be that only the pardoned approvers, i.e., Masood Mahmood and Ghulam 
Hussain had murder in their hearts. All these questions perhaps are of less than academic 
interest today. 

Judiciary in Crisis? Copyright © 25 


It is proposed in this chapter to deal with a brief survey of the case as a whole and deal 
with the other four accused, all members of the Federal Force, so that in the latter 
chapters the concentration and emphasis can be focused on the case against Bhutto. 

The prosecution sought to make out that Bhutto "the principal accused" was strongly 
motivated to enter into a conspiracy with Masood Mohmood the approver to eliminate 
Kasuri. That is to kill him as the latter had been a virulent critic of Bhutto on the floor of 
the Parliament and outside. According to Masood Mahmood, although he was the 
Director General of the F.S. F. he took a back seat and it was Mian Abbas, the second 
accused, who directed the plan and the strategies to kill Kasuri through the third accused, 
Ghulam Mustapha, and the approver Ghulam Hussain. The commission of the crime was 
left to them. The 4th and 5th accused were the gunmen who fired at Kasuri a few minutes 
after midnight near Shadman Colony. The accused who were about the scene beside the 
4th and 5th accused were Ghulam Mustapha, the 3rd accused, and Ghulam Hussain who 
was fortunate enough to be given a pardon and allowed to play the role of an approver. 
Mian Abbas was the one who was operating this criminal exercise behind the scene, 
according to Ghulam Hussain. 

The 3rd, 4th and 5th accused in their confessions did not implicate the principal accused. 
They stood by their statements. They were relying on the defence of compulsion and 
obedience to superior orders. Their position was that they were compelled to obey their 
superior officers in the F.S.F., and that they were threatened with violence to themselves 
and the members of their family. This defence was rejected both at the trial and in appeal. 
It was submitted on their behalf that their oath stipulated that they, as members of the 
F.S.F., had to swear allegiance to-the President of Pakistan Mr. Bhutto before the 
promulgation of the Federal Security Ordinance and the F.S.F. Act, but there was no such 
oath produced or found in their files, (para. 948 of S.C. judgement) According to their 
oath taken under the F.S.F. Act they had to obey all commands of their superior officers 
"even to the peril of their life". The Court, however, held that such orders must be lawful 
orders and an order to kill unlawfully is not within the ambit of lawful orders- The 
defences under the Penal Code, viz, (1) that under section 76, they by reason of a mistake 
of fact believed in good faith they were bound by law to carry out all orders. (2) that they 
acted as they did under grave and imminent threat to their lives were rejected by the trial 
court and the Appeal Court. 

These defences, it may be said were rightly rejected but they were attractive defences 
which stood a very good chance of being accepted. It is not fair to think that these good 
defences were dangled before them by interested parties. These defences lent themselves 
to vigorous argument and in the climate and atmosphere prevailing inside and outside 

Judiciary in Crisis? Copyright © 26 

court, it was certainly more relaxing to accept the prosecution case and argue this very 
plausible defence. This is exactly what the second accused Mian Abas did much later. On 
Masood's evidence, he Mian Abbas was the operator, the designer, the planner and the 
master mind in this criminal exploit and not he Masood Mahmood though he was the 
Director General. Here was Mian Abbas whose magisterial "confession" was in fact an 
exculpatory statement except for certain admissions which took him very near the offence. 
He retracted this confession at the trial. He found that the 1st accused scored no runs even 
between the wickets at the trial. He realised that the pledge to hold the elections within 90 
days was in an ever-receding horizon. He found that the defences taken by the 3rd, 4th 
and 5th accused were received attentively by the Bench, and he thought these defences 
were making good headway. He was a tired old man of 65 years. He pleaded his 
innocence for nearly 1 8 months and perhaps had a presentiment that his defence hitherto 
taken remained in square one and had no chance of being accepted. In these 
circumstances, there was a most surprising development in the course of the appellate 
proceedings. He submitted a written application to set out his position through the jail 
authorities duly certified by his counsel. What happened or what could have happened 
through manipulation is surmise. His counsel made the submission that Mian Abbas, the 
2nd accused, now accepted, the prosecution case against him as true and that whatever he 
did, he did under constant threats of the Prime Minister Bhutto and the Director General, 
Masood Mahmood. He himself had no motive to kill Kasuri. He took a completely 
different position. Certainly, it was "in extremis" Was he so frustrated that he thought he 
could live with a lie but had to die with the truth or was it vice versa? In any case, it could 
have been a protective defensive measure when he found the world collapsing round him. 
He perhaps clutched at a straw in a last minute effort to save himself. The majority of 
four judges had to reject this plea, having rejected these defences in relation to the 3rd, 
4th and 5th accused who were minor officers of the F.S.F. whereas Mian Abbas was a 
Director, and according to Masood Mahmood was the planner, designer, manipulator etc. 
This was also what Ghulam Hussain testified to. The minority among the appellate judges, 
however, could not convince themselves that Masood Mahmood was a truthful witness 
and, in the circumstances, acquitted Mian Abbas along with Bhutto. But in Bhutto's case, 
conceding the whole prosecution case there was no corroboration of an independent 
nature implicating him in the crime. We can make the observation that the acquitting 
judges of the appellate court were more than fair to the 2nd accused, Mian Abbas. Were 
the convicting judges, both in the High Court and the Supreme Court, more than unfair to 
Zulfikar All Bhutto? This will remain a question for the reader to answer with the 
assistance of this book. 

Judiciary in Crisis? Copyright © 27 




Bhutto was presented by the prosecution as the one and only arch enemy of Kasuri 
politically motivated to kill Kasuri especially after the exchange of hot words on the floor 
of the House on 3rd June, 1974. This was represented as a "threat" which the High 
Court accepted as such and also the four convicting judges of the Supreme Court. To 
reproduce the heated words in question: 

A. (i) Bhutto looking at Kasuri when he was crossing swords with him said, "You 
keep quiet. I have had enough of you; absolute poison. I will not tolerate your 
nuisance any more". Ahamad Raza Kasuri had retorted, "I cannot tolerate your 
style also" Bhutto then said, "I have had enough of this man. What does he think 
of himself?" Masood Mahmood had been witnessing this episode in Parliament. 

A day or two later, according to the evidence of Masood Mahmood, Bhutto sent 
for him and told him - 

(ii) that he was fed up with Kasuri and that Mian Muhammad Abbas knew all 
about his activities. The latter already had been given directions through the 
witness's predecessor to get rid of Ahamad Kasuri. He asked him that he should 
ask Mian Abbas to get on with the job and to produce the dead body, of Kasuri or 
his body bandaged all over. He also told him (Masood Mahmood) that he would 
hold the latter personally responsible for the execution of this order. According to 
Masood Mahmood he protested against this order saying that it was against his 
conscience and also against the dictates of God but the Prime Minister lost his 
temper and shouted that he would have no nonsense from him or Mian Abbas and 
added, "You don' t want Vaguer chasing you again, do you?" 

B. Masood Mahmood the approver said that he repeated these orders to Mian Abbas 
who was not the least disturbed and said he would see to it, and not to worry 
about it. Mian Abbas also said that he had many reminders about this earlier by 
the witness's predecessor. Bhutto himself had goaded him again and again both 
personally as well as on the green telephone (the secret direct line) about the 
execution of this order. Saeed Ahamed Khan, the Chief Security Officer of Bhutto, 
also reminded him. 

C. This witness also stated that Bhutto in July 1974 had asked him during his visit to 
Quetta "to take care" of Kasuri who was likely to visit Quetta. Accordingly, the 
witness told M. R .Welch that some anti-state elements including Kasuri were 
likely to visit Quetta and they should be got rid of. Kasuri did visit Quetta in 
September 1974 and a day or two before that the witness telephoned Welch on 

Judiciary in Crisis? Copyright © 28 

this matter "to take care of Kasuri. Thereafter, certain correspondence passed 
between him and Welch on this subject of Kasuri' s movements. Welch was the 
Director of the Federal Security Force in Quetta. 

It was this witness's position that he was with the Prime Minister in Multan on the 
morning of the 11th of November 1974 when he received a telephone call from 
the Prime Minister that "Mian Muhammad Abbas has made complete balls of the 
situation. Instead of Kasuri he has got his father killed". On his return to 
Islamabad Mian Abbas told him that his operation was successful but it was 
Kasuri' s father who had been murdered. 

D. The witness said he was summoned again by Bhutto who told him that the actual 
task had yet to be accomplished. He, however, declined to carry out such orders 
any more. 

With the result that there were threats and attempts on his life as well as to kidnap 
his children from Aitchison College, Lahore. Several times his food was poisoned 
at Chamba House, Lahore. Some of his subordinates had been won over and he 
had seen them lurking at odd places. He asserted that he and his family had no 
motive or grudge against Kasuri or his father. Witness's father and Kasuri' s father 
had been great friends. 

Masood Mahmood was taken into custody on the 5th morning of July 1977 after 
Martial Law was proclaimed. While in custody he addressed a letter to the Chief 
Martial Law Administrator on the 14th of August 1977 where he made a clean 
breast of the misdeeds of the Federal Security Force. After further interrogation 
he made a confessional statement before a magistrate on the 24th of August, 1977. 
He applied on the 7th of September 1977 for the grant of a pardon which was 
granted by the District Magistrate of Lahore. After the grant of this pardon he 
made a detailed statement. 

What manner of man was Masood Mahmood? It is sufficient to say at this point 
that he was a self-confessed criminal who purchased his freedom with his 
confession relating to the events that took place nearly three years earlier despite 
all the misdeeds committed by the Federal Security Force of which he was the 
head. He was certainly having a good time during Bhutto's regime, living in 
luxury hotels in his own country and abroad, purchasing spectacles with a hearing 
aid at state expense and enjoying luxury trips along with his wife during this 
period. He was described as a ruthless superior officer by a prosecution witness 
and there was an impressive record of all his misdeeds. He was far too potent for 
all his misdeeds to be fathered on Bhutto. He said so much against Bhutto after so 
long. He had to in law and in fact keep to the terms of his obtaining a pardon. As 
stated in the preface, the law in its wisdom falls in line with prudence, fairness 
and justice and strongly advises judges, if they have not already advised 
themselves, that the evidence of such accomplices must not be acted upon without 
double caution. The law again in all fairness and as a matter of common sense 

Judiciary in Crisis? Copyright © 29 

tells a judge that motive is like the proverbial single swallow which does not 
make a whole summer. It is inconclusive. 

(iii) In this particular case, Kasuri being a politician had many enemies just as 
Bhutto had. Undoubtedly, Bhutto operating on a larger scene had many more 
enemies and in that respect Kasuri was just one among a multitude. Kasuri had 
enemies and his having them in the Federal Security Force was most likely with 
all the attacks he made about this force both in Parliament and outside. It cannot 
be said he was not critical of the Director General himself when he attacked this 
Force nor can it be said his utterances about the Force did not embarrass the 
Director General. It is unfortunate that in a commonsense picture of the case this 
factor was ignored in more than one quarter during the trial and the appellate 
proceedings, when this circumstances stares one in the face, with regard to the 
Director General of the Federal Security Force having a motive to kill Kasuri. 

(iv) Corroborative evidence was sought to be furnished as against Bhutto by two 
witnesses. Saeed Ahmad Khan, the Chief Security Officer of the Prime Minister 
and Mr. Welch, the Director of the FSF in Quetta. The evidence of M. R. Welch 
does not implicate Bhutto in any manner whatsoever. It fails to connect Bhutto 
with the conspiracy. The evidence of Welch rests on the communication he had 
with Mian Abbas and Masood Mahmood. His communications with Mian Abbas 
was a routine report about the movement of Kasuri and other anti-state elements 
on their visit to Quetta, and the reports sent were routine communications which 
do not bring Mian Abbas into the conspiracy. But the evidence of Welch 
implicates Masood Mahmood and brings him into the conspiracy large as life. It 
was unfortunate that Masood Mahmood no sooner he implicated Bhutto was 
allowed to slip out as a pampered approver from justice. 

(v) A. With regard to Saeed Ahamed Khan his testimony that Bhutto somewhere 
in the middle of 1 974 in the course of an interview with him suddenly asked him 
whether he knew Kasuri and when he said that he did not know him personally, 
he was asked to remind Masood Mahmood about the job entrusted to him appears 
to be a typical police touch as it is called by criminal lawyers. It is invariably 
sensed by judges and lawyers with experience in criminal cases. It is not that it is 
necessarily false and must be rejected. But such an item of evidence is treated 
with extreme caution. It was not necessary for Bhutto to remind Masood 
Mahmood in this manner. It is far too vague and would have embarrassed Masood 
Mahmood himself if Bhutto being a co-conspirator sent this message pertaining to 
a very serious matter through Saeed Ahamed Khan in whatever vague manner. 
Bhutto was in regular communication with Masood Mahmood. He was on the 
green line and he could have picked up the telephone and reminded him on the 
secret line. If this was the form of Bhutto's conduct he must have sent 
innumerable reminders about the job from June to November. This was the time 
when Bhutto had countless problems and quite a variety of them. It is an 
inherently improbable story. The message is indefinite and vague and Masood 
Mahmood is the last person in any case whom we could trust to decode this 

Judiciary in Crisis? Copyright © 


message. This is not the corroboration that satisfies the law or ones commonsense 
and one's sense of fairness and justice in a criminal case. An approver cannot 
corroborate himself. It is a pure commonsense principle. 

B. Through Saeed Ahamad Khan the prosecution sought to corroborate the 
evidence of Masood Mahmood further by leading evidence of the subsequent 
conduct of Bhutto. 

Saeed Ahamad Khan was also taken into custody with the promulgation of 
Martial law. It is sufficient for the moment to say that this witness who was the 
Chief Security Officer of Bhutto does not implicate Bhutto in any manner about 
anything the latter did or said in relation to the conspiracy. His testimony about 
the message given to him by the Prime Minister in the middle of 1974 has been 
already dealt with. His further evidence was that, 

(1) In December 1974 or January 1975 he was taken to task by Bhutto for sitting 
in Rawalpindi when his (Bhutto's) name was being mentioned in connection with 
this murder of Kasuri's father before the Tribunal presided over by Justice Safi- 
Ur-Rahman in Lahore. He proceeded to Lahore and contacted the Senior 
Superintendent of Police and Abdul Ahad was replaced by Waris to overlook the 
investigation. He gathered that the empties found at the scene were of Chinese 
make and of 7.62 mm calibre. When he brought this to the notice of Masood 
Mahmood, he was undisturbed though this type of bullets was in official use by 
the Federal Security Force. He replied that they could have been obtained 
underground and they were smuggled into the country. 

(2) Bhutto on the other hand, when it was reported to him, wanted him to check 
with the Defence Secretary who informed him by letter that bullets of this calibre 
and make were officially issued to the Federal Security Force and to other Army 
Units. Saeed Ahamad Khan was also asked whether these bullets were available 
in Bara, a tribal territory and also to make inquiries about Kasuri's other political 
enemies and about family disputes. 

(3) The witness also spoke about the Judicial Tribunal Report which was 
completed on the 27th of February 1975. The original of the report was sent to 
Bhutto by the Chief Minister of Punjab with the summary of the findings and they 
wore to the effect that the shooting in Islamabad and Lahore had a common 
inspiration, motive and organization and the motive was political and that there 
was a well organized, well equipped persistent effort to kill Kasuri because of his 
party affiliation and public utterances. There was a recommendation that a more 
purposive interrogation should be done from the residents of the area, the invitees 
at the wedding etc. and about the number of shots fired and the number of 
weapons used. Bhutto had expressed the view, according to the witness, that the 
report was adverse and should not be published. 

Judiciary in Crisis? Copyright O 31 

Well, we know that the report was not published. It would have been counter 
productive to have such reports published before the investigations were complete. 
The report would have been a private guide to the government and the 
investigators and not for publication. No responsible investigators publish their 
lines of investigation. On the other hand, the Chief Minister of Punjab, Mr. Hareef 
Ramay, sent this report with a covering letter to the Prime Minister which 
concluded, "I seek your guidance, Sir, whether the report of the Tribunal should 
be made public." 

The original of this report has not been found by the Federal Investigation Agency. 
The prosecution had proved that the Chief Minister of Punjab had sought the 
advice of the Prime Minister whether to publish the report and it is known that the 
report was not published. Under what circumstances this happened was not 
proved. The Chief Minister who was in the calendar of witnesses was not called 
by the prosecution because it was alleged he had turned hostile. This was denied 
by the defence. Mr. Ramay, the Chief Minister, was convicted under the Defence 
of Pakistan Rules during Mr. Bhutto's regime though his conviction was later set 
aside as illegal by the Lahore High Court. It cannot be accepted necessarily that 
Mr. Ramay had turned hostile to the prosecution. Even if it could be so, it does 
not necessarily displace the commonsense presumption that if called he could 
have even truthfully said a few things unfavorable to the prosecution. 

Moreover, even conceding this evidence, this circumstance does not necessarily 
implicate Bhutto in the conspiracy. His conduct is consistent with his anxiety, 
embarrassment and interest in the proceedings of the Tribunal of Inquiry when his 
name had been unfairly mentioned with an insinuation. The evidence remained at 
that point in the Tribunal of Inquiry. If Bhutto was unfairly and wrongfully 
mentioned, he would have naturally wanted the investigation to positively go in 
the correct direction. The bullets were officially issued to the Federal Security 
Force and other Army Units. They were available underground. If the 
investigation went in the direction of the Federal Security Force without pursuing 
the other possibilities, i.e., the availability of the bullets underground and in the 
other Army Units, it would have embarrassed the government and himself despite 
his own innocence. This may be a reasonable hypothesis and explanation for 
Bhutto telling Saeed Ahamad, "Keep the FSF out", if he did say so at all. There 
were many other political enemies of Kasuri! 

Saeed Ahamad also testified to the fact that he opened a file on Kasuri even as far 
back as 1973 before the 1974 Lahore murder. But files were opened with regard 
to many other political opponents. He also spoke about the strenuous efforts made 
by Bhutto to win over Kasuri. In the first place, there is nothing wrong for a 
politician to win over his political enemies. In the second place, Saeed Ahamad's 
evidence and the observations on this question by the convicting judges of the 
High Court and Appeal Court are open to much criticism. 

Judiciary in Crisis? Copyright © 32 

Bhutto, according to this witness, instructed a strict surveillance on Kasuri 
particularly after the killing of his father. This again is natural when Kasuri went 
about saying openly that he would take revenge on Bhutto. 

We see, therefore, Saeed Khan's evidence, even if totally believed about Bhutto's 
subsequent conduct and interest in the investigation, is consistent with his 
innocence. It may well be the conduct of a man in the position of a Prime Minister 
who was embarrassed by the unfair suspicions of his political opponent without 
any evidence whatsoever. Even when Kasuri gave evidence at the trial he had no 
evidence for his suspicions. It was nothing more or nothing less than an 
insinuation and as far as Kasuri was concerned, he had no material except the 
words used by Bhutto against him in Parliament on the 3rd of June 1974. 

To sum up the case against Bhutto, as presented by the prosecution, it rested on a 
tripod, so to say, besides the evidence of Kasuri who provided the motive 
evidence. The main leg was the evidence of Masood Mahmood, the approver. The 
second leg was really no leg at all and that is the evidence of MR. Welch, and the 
third leg the evidence of Saeed Khan, was shaky and infirm. The prosecution case, 
at the highest, stands on two legs really propped up by the motive evidence given 
by Kasuri. 

Judiciary in Crisis? Copyright © 33 




The contents of this Chapter may include observations which may be repetitive but it may 
also be helpful to the reader to recapitulate the items of evidence and reconsider what has 
been repeated for the sake of emphasis and stress. 

The prosecution led the evidence of 41 witnesses and many documents to prove, 

1. The strained relationship between Bhutto and Kasuri resulting in the threat 
extended on the floor of the House on 3-6-74 by Bhutto. 

2. The conspiracy to murder Kasuri between Bhutto and Masood Mahmood and 
the joining of the other accused and Ghulam Hussain, another approver, beside 
Masood Mahmood. 

3. Attack on Kasuri as part of the same conspiracy firstly at Islamabad and later in 
Lahore, which resulted in the death of the deceased. 

4. The steps taken by Bhutto and his subordinates to channelise the investigation 
in a manner so as to exclude the possibility of detection of the actual culprits. The 
interference in the investigation of the provincial police by the central agencies. 

5. Preparation of incorrect record by the police under the direction of the officers 
of the Central Government with the object of diverting the correct line of 

It can straightaway be said that the evidence in relation to the Islamabad shooting does 
not really touch Bhutto in any manner, nor all the evidence led on the preparation of 
incorrect records. Item No. 1 refers to evidence which may be classified as motive 
evidence. Item No. 2 refers to evidence of the conspiracy implicating Bhutto, and the 
sole witness is Masood Mahmood who virtually purchased his pardon with his 
confessional statement made after being in solitary confinement for a considerable period. 
He is a self confessed participant in the crime. It may be classified as the conspiracy 
evidence. Item No. 4 refers to the evidence of the subsequent conduct of Bhutto. It may 
be classified as subsequent conduct evidence. The only witness being Saeed Ahamad 

Justice Haleem, now the Chief Justice of Pakistan, who was one of the three judges who 
acquitted Bhutto in appeal, observed there were two limbs to the supportive evidence to 
the evidence of the approver - one is furnished by Saeed Ahamad Khan and the other by 
M. R .Welch. The judge also observed that M. R .Welch has not implicated Bhutto at all 
in what was conveyed to him at Quetta in July 1974 by Masood Mahmood. His evidence 

Judiciary in Crisis? Copyright © 34 

fails to connect Bhutto with the conspiracy. It only furnishes corroboration to the 
evidence of Masood Mahmood that there was a conspiracy. That there was one is 
common ground in the totality of the evidence. But what is to be concerned about is the 
supportive evidence, if any, to connect Bhutto with that conspiracy. Therefore, it is not 
far wrong as stated earlier that this was no leg at all. It is a broken limb which does not 
support the prosecution's case against Bhutto. 

1. Dealing now with the motive evidence and the witness Kasuri, the prosecution has 
certainly proved that there was no love lost between Bhutto and Kasuri. He was a virulent 
critic, both in and out of-Parliament. He was one of the many political enemies of Bhutto 
and Kasuri himself had many enemies besides Bhutto. What was the "the threat" 
extended to Kasuri, to use the words of Anwarul Haq, C.J., in his judgement in appeal? 
Was it a correct way of interpreting this episode on 3-6-74 in Parliament? These are the 
words: "You keep quiet. I have had enough of you; absolute poison. I will not tolerate 
your nuisance. What does he think of himself'?, and Ahamad Kasuri retorted, "I cannot 
tolerate your style also". Do these words and the whole episode give a necessary 
impression that there was "a threat" "extended" to Kasuri to kill him by Bhutto? Does all 
this lead to the necessary inference that following this incident Bhutto had ill-feelings 
which necessarily meant that he had a motive to kill Kasuri, and therefore, he entered into 
a conspiracy with Masood Mahmood? 

Certainly, Kasuri was a political enemy of Bhutto. It will be a very uncommon and 
unique leader who has no political enemies. Bhutto definitely was not that unique 
uncommon political leader. Indira Gandhi was not that. Nehru, perhaps, was. General Zia 
is not that nor is Rajiv Gandhi. This does not mean that if one of their political enemies is 
killed, each one of them is the killer, as the case may be. The killer in this case may have 
been one of the members of the security force who may have acted on his own without a 
manifest motive or he may have been instigated to do so by the head of his Force. On the 
other hand, it would be normal human conduct for the relatives and friends of the victim 
to suspect the political leader if, as known in this case, Bhutto's party supporters had 
many incidents of violence with Kasuri earlier. The unintended victim died on the 1 1th of 
November 1974. Kasuri survived to avenge his father's death. It is known from Privilege 
Motion he moved in Parliament on the 9th of July 1974 that he had a number of abusive 
calls on the night of the 3rd over the incident in Parliament. Worse things have been said 
in Parliament. As Bhutto himself said, he would not have over this comparatively trivial 
incident drawn his sword. Prime Ministers in England have lost their tempers with their 
critics. Even Abdul Wali Khan had shouted in Parliament at Abdul Hafeez Pirzada that 
he would wring his neck and shoot the Prime Minister. The Speaker, however, expunged 
the words. 

As an English Judge always directed the Jury, "Gentlemen, it is common for husbands to 
swear and curse at their wives and wives to swear and curse at their husbands. Do not 
take that into serious consideration as a motive to decide who is the killer of the wife or 
who is the killer of the husband". Very often hard feelings expressed in hard words cool 
tempers. Anyway, no one who has a sense of responsibility goes on a killing campaign 
after "a threat" made public in Parliament even if this incident can be called so! 

Judiciary in Crisis? Copyright © 35 

When Kasuri referred to this incident with Bhutto in the early hours of the morning of the 
11th of November soon after his father died, he was naturally emotional and indignant at 
this unprovoked assault. His father was the unintended innocent victim. He did not 
identify or know who the assailants were nor who the instigators were. He was not wrong 
to understand that it was politically motivated. He had every reason to suspect that it was 
a P. P. P. (Pakistan People's Party) instigation. He had been a victim of violent attacks by 
P. P. P. supporters. He had received abusive nuisance calls from P. P. P. supporters on the 
3rd of June, 1974. He could not have mentioned any particular member. It was not 
surprising therefore that he referred to the political motivation and the incident of the 3rd 
of June 1974 in Parliament. What else could he say but this much in his emotional and 
disturbed state of mind without any further clues or information? He never gathered any 
thereafter. The content of his evidence always rested there. 

At a moment like that, his only identifiable enemy was Bhutto among his countless 
unidentifiable enemies. Were Kasuri's feelings abiding? After the middle of 1975 on the 
evidence led by the prosecution witness Saeed Ahamed Khan and Kasuri and the 
documents produced, we find that Kasuri was seeking an audience with Bhutto, he was 
making overtures to come back to the P. P. P., and he wa3 selected as one of the 
Parliamentary delegates to go to Mexico. Bhutto gave him an audience only many 
months later. Then he applied for nomination as a P. P. P. candidate for the election of 
March 1 977 which he failed to get. Bhutto had not forgiven him evidently for mentioning 
his name in reference to his father's murder. Could all this have happened after the 
middle of 1975 if Kasuri's suspicion about Bhutto having been in the conspiracy was 
abiding? Was it not just a natural statement made because he was angry with the P. P. P. 
and its leader? 

It is now known that the murder was a one hundred percent FSF exercise. Why should 
the FSF engage in the exercise if none of the accused officers and the approver, Masood 
Mahmood, had any motive to kill Kasuri? So the convicting judges of the High Court 
thought that Masood Mahmood' s evidence is corroborated by this circumstance, that is to 
say Bhutto's political enmity towards Kasuri. On the other hand, can it be said 
convincingly that on the prosecution evidence a motive on the part of Masood Mahmood 
could be excluded? A Prime Minister in power has many seasonal friends whose self 
interests are identifiable with the power and position of their Prime Minister. There are 
no exceptions to this rule in the cases of the Prime Ministers and Presidents in South and 
South East Asia. It pays them to be loyal to the man and the party. They know that the 
fall of the Prime Minister and his party spells disaster for them and their fortunes. In 
many cases it is the loyalist and the self interested time server who raises his sword when 
the star to which he has hitched his wagon is assailed. The leader may disapprove of this 
action but when the action is complete, he may even protect the sword raiser lest he rock 
the boat. If he does protect even that does not necessarily mean he had given the orders to 
his loyalist to draw the sword. As Sir John Koteiawela, a one time Prime Minister of Sri 
Lanka, observed, "God, save me from my friends. I know how to look after my enemies". 
Kasuri had very often attacked the doings of the Federal Security Force. One year before 
the Lahore killing he had said something like this about the FSF: "This Force has been 

Judiciary in Crisis? Copyright © 36 

created to check the processes of democracy in Pakistan. This Force has been created to 
dislodge the opponents of the Government". A month or two before the killing at Lahore, 
at a meeting and a tea party held in Cafe China, Kasuri criticised the Government and 
said it was oppressing the people and using the FSF to lathi charge and shoot people. 
These reports were sent from Quetta to the Director General, Masood Mahmood. The 
FSF has on many other occasions been the target of his attacks and it was most certainly 
a reflection on the Director General. On the other hand, Kasuri was attacking Bhutto for 
the misdeeds of the FSF. A politician of the calibre of Bhutto perhaps would have found 
fault with Masood Mahmood if he had not done it already for the excesses of the FSF. It 
would have lost popular support for him. But Masood Mahmood would not have been 
disturbed as long as he had the protection of the government. But if these attacks on the 
FSF continued, the top man could have even been removed. Governments have been 
known to do this. Governments have also been known not to do this. In any case, the 
responsibility for the misdeeds of a government functionary may ultimately be the 
government's but the heads of the government need not necessarily share his criminality. 
If that were so, innumerable heads should have rolled in the history of countries. 

These were the political and social realities in Pakistan. In these circumstances, Masood 
Mahmood was not someone who could not have had a motive to eliminate Kasuri. The 
words "eliminating" anti-state elements were his when he spoke to M.R. Welch. If he 
could have spoken to Welch, the Director, FSF, whom he did not know too well in this 
manner, he could have spoken like this to Ghulam Mustapha, Ghulam Hussain, Arshad 
lqbal and Rana Ifthikar directly or indirectly to set upon this "elimination" exercise. If 
Bhutto had known about it, would he have encouraged it or rather stopped it? Would he 
have caused all this embarrassment to himself and the government? Would he not have 
stopped it rather than prodded the FSF in this elimination exercise? Bhutto playing a part 
in this elimination exercise of Kasuri would have made him, as it did, the obvious suspect. 
Would Bhutto, the intelligent man he was who depended so much on popular support, 
have participated in any exercise to make Kasuri a martyr and himself an obvious suspect? 
These are questions that a Defence Counsel would have asked a Jury. It must not be 
forgotten that according to Mian Abbas, Masood Mahmood was always dabbling in 
politics and harassing politicians. After the promulgation of Martial Law Milan Abbas 
presented a list of all his misdeeds. When Welch was asked why he did not refuse 
Masood Mahmood when he ordered him to eliminate Kasuri, his answer was that he 
preferred not to cross him but to keep quiet and do nothing about it. "Anyone who had 
served with Masood Mahmood could, realise that the better discretion would be to keep 
quiet than to contradict. In case I opposed his suggestion,' would have forced him to take 
action against me so that what he told me would not leak out.... at the time when (the 
conversation about Masood Mahmood' s order to murder Kasuri) it took place.... If I had 
acted otherwise, he would have dubbed me as an officer disloyal to Pakistan and would 
have initiated action against me for that reason.... I had no fear regarding my life but Mr. 
Masood Mahmood could have instigated a case against me so that I did not divulge what 
he talked to me. And If I did, I would not be believed." According to Welch he was not 
afraid perhaps of his life which meant that he was not afraid to die and be killed by the 
Director General but he feared Masood Mahmood would have brought false charges 
against him if it suited him. What a horrible picture and what an evaluation of the arch 

Judiciary in Crisis? Copyright © 37 

approver drawn by another prosecution witness. Well, so much for all the motive 
evidence led. In law motive is inconclusive. In all these circumstances, could it be said 
that the prosecution proved a motive exclusively on the part of Bhutto to kill Kasuri on 
the motive evidence it led, and further was it proved beyond reasonable doubt? 

As referred to earlier, it is revealed that the hostile attitude of Kasuri after the middle of 
1975 was cooling towards Bhutto. Saeed Ahamad Khan claimed the credit for this change. 
According to him, Bhutto wanted him and Bajwa, his assistant, to win over Kasuri and 
bring hire back to the PPP. So they proceeded to advise him that he, Kasuri, had a 
political future and for his own sake and security he must stop oppressing Bhutto and get 
back into his fold. At last they succeeded, they claimed, and Kasuri meek as a lamb for 
his protection and safety made a pretence of a change of heart. So according to Saeed 
Ahamad Khan, it was Bhutto who went to Kasuri and it was not Kasuri who went to 
Bhutto. If Bhutto went to Kasuri, there was nothing wrong for a seasoned politician to 
win over his political opponent who was going about accusing him of having killed his 
father. No one especially in Bhutto's position would have liked an accusation or rather an 
insinuation of this sort, whether it was true or false. If Kasuri went to Bhutto again, there 
was nothing wrong or incriminating for Kasuri to get back to the PPP. There was nothing 
sinister in this reconciliation even if it is assumed that it was a pretence on the part of 
Kasuri. Would Kasuri, if his suspicions were abiding, as a politician with a future, have 
gone back to the PPP like a prodigal after he said so much against its leader unless he was 
genuine? What could have been the political future for a man when he does such a 
somersault as to fall on the lap of a leader who he had published to the world was his 
father's murderer? Would Kasuri, if all this was a matter of expediency and a self 
protective pretence have gone so far as to write to Bhutto from Mexico when he had gone 
on a Parliamentary delegation thus, "We found that your image as a 'Scholar Statesman' 
is emerging and getting wide acceptance." Was this a pretence? Was all this necessary in 
an exercise of pretence? Is it consistent with an abiding suspicion? On the other hand, the 
judges of the High Court and the four convicting judges of the Supreme Court were quick 
to accept Kasuri' s position that it was all a pretence without any doubt. There was 
another letter written by the supposed "pretender" on 30th of January. 

"My dear Prime Minister, 

Earlier I have requested over half a dozen times to your M.S. for an interview 
with you but to this date I have not received any reply from him. I wonder whether 
Major General Imtiaz AH ever made it known to you? I am taking this liberty to 
write to you and to request you personally to kindly grant me an intervierw at your 
earliest convenience. I have to discuss many matters which concern the party and 
the Government. 

You will be happy to know that I have gone to Law Profession as a whole time. 
Pray for my success and well being. 

I met Mr. Abdu Hafiz Perzada on 25th of this month in Lahore and had a detailed 
talk with him. I hope he must have informed to you about that. 

Judiciary in Crisis? Copyright © 38 

/ trust that this letter finds you and Begum in best of health, happiness and 

With warm regards 

Yours sincerely 
Ahamad Raza Kasuri. " 

Bhutto noted in the margin of this letter, I will see him when it is convenient. Please 
return this letter after you have noted my remarks". It may be mentioned that Kasuri 
asked for an audience with Bhutto from the middle of the year 1975. He was granted an 
interview only in March 1976 and he rejoined the PPP in April 1976. Bhutto it was who 
was dragging his feet. The National Assembly of Pakistan had been dissolved on the 7th 
of January 1977 and the country was going to have the general elections in March 1977. 
Kasuri was later on asking for nomination as PPP candidate. Why should a prodigal 
pretender be asking later for party nomination from a leader whom he suspected as 
having been his father's murderer? 

The report in evidence was that Kasuri wanted an audience with Bhutto in 1975 about the 
middle of the year. The note says about Kasuri 's realisation that his future lay with the 
PPP and he wanted an audience. There is also in evidence that this audience was given to 
him only in March 1976. This is undisputed. It is the prosecution evidence that Bhutto 
was not disposed to give an early audience. In fact Kasuri got his appointment about 8 or 
9 months later in March 1976. Therefore, it was not a case of a prodigal "pretender" 
being embraced with open arms by Bhutto who was afraid of the prodigal's suspicions 
and insinuations. 

This was a report to Bhutto from Saeed Ahamed Khan that Kasuri wants an audience 
with Bhutto and he feels his future was with the PPP etc. This document P.W.3/16/D was 
admitted but the endorsements were objected to when the defence wanted to produce the 
two endorsements there made by Bhutto which is as follows: 

"He must be kept on rails. He must repent and he must crawl before he meets me. 
He has been a dirty dog. He has called me a mad man. He has gone to the extent 
of accusing me of killing his father. He is a lick He is ungrateful. Let him stew in 
his juice for some time. 

Z.A. Bhutto 

Please file 

Z.A. Bhutto 


Judiciary in Crisis? Copyright © 


This document with the endorsements was a photostat because the original was not 
traceable in the P.M.'s office. Saeed Ahamad Khan identified his signature on his note 
and also his handwriting. He also identified Bhutto's signature and writing in the 
endorsements. The High Court, however, held that these endorsements were inadmissible 
since the defence had not summoned the prosecution to produce this document under 
section 65 of the Evidence Ordinance. But most surprisingly the High Court went on to 
comment that the first endorsement is not consistent with the second endorsement and 
that it is not possible to reconcile the first and the second endorsement and these 
endorsements are clearly a forgery (vide High Court judgement para 565). The High 
Court made a positive finding which was very much prejudicial to the defence in relation 
to the contents of a document which they held to be inadmissible. To place it at the 
lowest, are all their findings all that clear? It is open to the people to form their views. 
What is irreconcilable with the first and second endorsement, the latter of which only 
says, "Please file"? Is reconciliation all that "Impossible"? Is it all that clear that it was a 
forgery and a fabrication? Strong words and strong findings on matters which are quite 
consistent with Bhutto's reluctance to give Kasuri an audience for 8 or 9 months and his 
admitted endorsement in the marginal note to the letter by Kasuri on 30th of January 
referred to earlier. The High Court erred when it overruled the photostat copy on the 
ground that the prosecution was not summoned to produce the original in the P.M.'s 
office. It was pointed out by the defence in the Supreme Court that the prosecution was in 
fact summoned to produce the report of Saeed Ahamad Khan but the document was not 
traceable. It could be that the document was lost or suppressed. In fact, there was a better 
reason for the High Court to arrive at a finding that the document was suppressed by the 
prosecution than to find that the endorsements were forged by the defence. But either 
finding would be unfair to either side respectively. One wonders why the High Court was 
so quick to arrive at this finding against the defence. As already stated, the defence in the 
Appeal Court pointed out that there was an application made to summon the prosecution 
to produce this document. The Supreme Court accepted the position but unrelentingly the 
four convicting judges agreed that since the evidence was that what was produced 
PW3/16/D was a photostat of the original and this photostat was produced from the PPP 
Secretariat, they held that the views of the High Court were correct, (vide judgement of 
Anwarul Hag, CJ., para 646) They held that there seems to be substance in the 
prosecution's submission that these endorsements appear to have been written at some 
later date. The four convicting judges of the Supreme Court virtually put the cart before 
the horse and even before they looked for corroboration for the testimony of Masood 
Mahmood, a self confessed participant in the case, begged the question and made a 
finding contrary to the rules of prudence, fairness and justice by holding that they have 
reached the conclusion that "the learned judges of the High Court were right in holding 
that the appellant Zulfikar Ali Bhutto had a very strong motive to do away with Ahamad 
Raza Kasuri owing to violent political differences and the manner and the language in 
which Ahamad Raza Kasuri gave vent to his views against the former Prime Minister and 
his policies." In other words, it would have surprised them if Bhutto did not turn out the 
conspirator as testified to by Masood Mahmood. These four convicting judges of the 
Supreme Court continued to arrive at this interesting finding: "The cumulative effect of 
all the documents taken together is that the initiative to win back Kasuri was undoubtedly 
taken by the appellant Zulfikar Ali Bhutto entrusting the assignment to Saeed Ahamad 

Judiciary in Crisis? Copyright © 


Khan and his assistant Bajwa." The judges did not consider the possibility of security 
officers and others interesting themselves in this reconciliation for various reasons 
including their own self interest. They ignored all the circumstances which pointed to 
Bhutto's reluctance to forgive Kasuri. It is not unlikely that Masood Mahmood a political 
debbler and a tyrant in his time of power was not a passive spectator in all this. As far as 
Bhutto was concerned, if as the High Court and the majority in the Supreme Court in 
effect held that it was Bhutto who went to Kasuri and not Kasuri who went to Bhutto, 
why was there a delay of eight months to grant Kasuri an interview? Why did Bhutto not 
have the time to meet Kasuri even on the 30th of January 1976? Why was Kasuri refused 
PPP nomination? Could Kasuri have sought PPP nomination for the general elections of 
1977 if he still suspected Bhutto and was only pretending? These questions never appear 
to have disturbed the convicting judges of the High Court and Supreme Court. These 
questions may disturb the people if they are placed before them. Far from raising doubts, 
the views of these judges contained positive terms like "undoubtedly", "clearly", "It is 
clear" and "It is not possible". These terms are more appropriately used by sort of crystal 
gazers than by judges in these circumstances. 

2. The evidence of subsequent conduct rests on the evidence of Saeed Ahamed Khan 
about whose evidence some comments have been already made. 

He does not implicate Bhutto in any sense with the conspiracy. His evidence is confined 
to (1) the part played by the witness on the instructions of Bhutto in the investigations 
and the attitude and interest shown by the Prime Minister. (2) the surveillance on Kasuri 
and (3) the winning over of Kasuri and the alleged instructions of Prime Minister Bhutto. 
At the outset, the totality of his evidence even totally conceded does not implicate Bhutto 
in the conspiracy. The acquitting judges of the Supreme Court treated this witness as an 
accomplice. For purposes of Bhutto's defence, however, it was not necessary to show 
him up as an accomplice needing corroboration. However, Saeed Ahamad Khan also was 
one of those who had been taken into custody on the 5th July 1977 and had been detained 
for several months. We have referred to the finding of the judges of the High Court and 
the convicting judges of the Supreme Court who have had no doubts that, "The 
cumulative effect of all the documents taken together is that the initiative to win back 
Kasuri was undoubtedly taken by the appellant, Zulfikar All Bhutto...". What are these 
documents and what are their contents? 

(a) Saeed Ahamad Khan reports on 29th July 1975, "Mr. Ahamad Raza Kasuri, MNA, 
has had number of meetings with me, the last one being at Rawalpindi on 28th July 1975. 
He had realised that his future was with the PPP. On the Qadiani issue, he says the 
attitude of Air Marshal Asgar Khan has been lukewarm. Mr. Ahmad Raza Kasuri has 
requested for an audience with the Prime Minister at his convenience." 

Saeed Ahamad Khan as Chief Security Officer had to send political intelligence reports 
on the Prime Minister. His sending reports referred to in this chapter was a matter of 
routine. Does the above report indicate anything to suggest that Bhutto initiated 
negotiations? Did he give an audience to Kasuri? No. 

Judiciary in Crisis? Copyright O 41 

(b) The second report dated 29th September 1975 states, "Mr. Ahamad Kasuri, MNA 
now claims to have sobered down and become stable. His rough edges have been 
chiselled out, his political horizon has become clearer and is a progessive being. Mr. 
Ahamad Reza has categorically stated that he wishes to return to the fold and carry out 
Prime Minister's directive and can be used in any way desired by the Prime Minister. He 
is prepared to take a head - on confrontation with Khan in the Punjab. He is quite 
conscious of the fact that his lone vote in the National Assembly for the Government 
could not be of much consideration but as a demagogue and a student leader with a feudal 
lobby he can be a common denominator and can be utilised as such.... There is a case 
pending against him. Sardar Izzat Hayat and Zafar Ali Shah, member of the Rawalpindi 
Bar, and others in the Court of Malik Muhammed Rafique, 1st Class Magistrate, on the 
charge of having removed the Pakistan flag from the car of the State Minister, Jamalder 
and the next date fixed for nearing is 20th of October 1975. He obliquely hinted that this 
case may not be pursued and his harassment and that of Sardar Izzat Hayat may be stayed. 
He is still anxiously waiting for an audience with the Prime Minister." Bhutto's reaction 
was again indifferences; no audience was granted. 

(c) The 3rd report was dated 25th November 1975. It was from Bajwa, the assistant 
to Saeed Ahamed Khan. It states, "Ahamad Raza Kasuri said he did feel that he is very 
much sobered now and wanted to co-operate with the Government but he suspected that 
some third agency which did not like these moves wanted to create a gulf... Ahamed 
Rasa Kasuri said that he may be given some guidance by the Prime Minister and he will 
act accordingly but so far he has not been given an audience." Bhutto does not give him 
an audience and there was no response. 

(d) On the 5th of December 1975, Saeed Ahamed Khan sends another intelligence 
report. It reads, "As per instructions I met Sarder Izzat Hayat, formerly of Tehrik-e- 
Isteglal on 4th December 1975. He was most anxious that Mr. Ahamed Raza Kasuri, 
MSA, be given an audience with the Prime Minister.... He has assured me that Ahamad 
Raza has sobered down, his edges rounded off and is keen to rejoin the PPP together with 

his band of supporters and workers he is determined to rehabilitate himself and work 

as a close associate of the Prime Minister. Ahamad Raza Kasuri is being pestered by the 
opposition parties to join them... but again begs that he may no be kept on tenterhooks 
any more but be brought to the fold of the PPP without further delay and assures 
complete loyalty to the Chairman. The irritants created by the vested interests at the move 
of Ahamad Raza Kasuri joining the party be kindly set aside since the negotiations with 
him have now been carried on for the past 6 months with no results so far." This report 
too had no response and no audience had been given by Bhutto. These reports have been 
marked as seen by the Prime Minister. The report of the 5th of December referred to 
above was one which had a note by Bhutto. 

"I will see Ahamad Raza Kasuri in Pindi." Evidently, Bhutto was in no hurry for the 
return of the prodigal and he was putting off giving Kasuri an audience. 

Then there is the letter of 30th of January written by Kasuri himself to Bhutto referred to 
earlier in which he informed him that he has gone back to the profession and asking him 

Judiciary in Crisis? Copyright © 42 

for Bhutto's prayers for his success and sending him his warm regards and asking him for 
an early audience. He hoped Bhutto and Begum were in good health. Even on this letter 
the endorsement made by Bhutto was, "I will see him when it is convenient. Please return 
this letter when you have noted my remarks". Was this the conduct of Bhutto if he 
initiated the negotiations to win over Kasuri? Does it not look as though the security 
officers were trying to, on their own, arrange an audience much to the annoyance of 
Bhutto? The interview was given only in March 1 976. 

Well, let us go back to the two endorsements referred to in the document PW 3/1 6D 
which contained Bhutto's Endorsement on a note which contains a request for an 
audience to be given to Kasuri, "He must be kept on rails". In the report of Saeed 
Ahamed Khan in January there is a reference to Kasuri requesting that he be not kept on 
tenterhooks anymore. In other words, Kasuri was kept on rails and on tenterhooks. Why 
were the judges of the High Court and the four convicting judges so positive to hold that 
the endorsements on the 29th of July were a forgery? Why were these judges so certain 
from all these documents that Bhutto it was who went to Kasuri in the teeth of all these 
reports? The question again arises if all this is placed as subsequent conduct of a guilty 
person, could not the same circumstances have been the conduct of an innocent man who 
was outraged by the unfair insinuation that he was a murderer rather than being 
intimidated and influenced by a sense of guilt? Even the finding does not conclusively 
incriminate Bhutto - at the highest. 

Much time has been devoted on these items of evidence and the findings to show how the 
judges of the High Court and the four convicting judges of the Supreme Court seem to 
have arrived at certain conclusions with which it is rather difficult to agree. This is a 
small matter. Hardly anything turns on it but it is a concrete instance where the judges 
could have been fallible, to say the least. 

(e) Saeed Ahamed Khan testified that when he asked the Prime Minister whether he was 
to produce the letter sent by the Defence Secretary that similar calibre bullets of Chinese 
make were in official use of the Federal Security Force, the Frontier Corp Units and the 
Armed Corp Tank Crew, Bhutto is supposed to have lost his temper and said it need not 
be produced and shouted out whether he had sent him to safeguard his interest or to 
incriminate him. He warned him, "Not to be over clever and suffer the consequences his 
progeny will not forget". This witness also spoke of the strict surveillance kept on Kasuri. 
There was a surveillance on many others and it would have been surprising if no 
surveillance was kept on Kasuri who was openly vowing vengeance on Bhutto and his 
party for his father's death. 

Saeed Ahamed Khan was rather obliging to the prosecution when, contrary to the 
documents and circumstances, he wanted the court to believe that Bhutto had assigned to 
him the task of winning over Kasuri. For all his trouble as he claimed to act in the 
interests of Bhutto, he was compelled to admit in cross-examination that he was demoted 
by Bhutto in 1977 and was under a cloud thereafter. He also admitted that his brother had 
been removed from service on Bhutto's orders. He had been detained for some months by 
the military authorities who had seized about a thousand files concerning him. This 

Judiciary in Crisis? Copyright © 43 

witness' evidence in court that Bhutto had asked him to keep the FSF out finds no 
mention in his earlier statements. He made material omissions in his earlier statements 
with regard to his conversations with Bhutto. 

We must remember Bhutto was more than aware that he had many enemies owing to his 
policies of land reforms, nationalisation etc. There was an attempt on his life by a Baluchi 
student somewhere in September 1974. The FSF was an important arm of the government. 
Bhutto' s instructions to Saeed Ahamed Khan was to help the investigation and keep him 
informed. Masood Mahmood who was admittedly in the conspiracy could have kept 
Bhutto off the scent. Bhutto got confirmation from the Defence Secretary that the type of 
bullets used were officially used not only by the FSF but they were officially used by 
other Army Units. Bhutto was naturally interested in the investigation. If he was innocent 
he would have welcomed the investigation to speed up and send a positive report. If 
Saeed Ahamed Khan is to be believed, was it not possible that Bhutto would have lost his 
temper at the witness when he wanted the Defence Secretary's letter about the 
availability of 7.62 mm bullets of Chinese make in other units? This letter was helpful to 
the FSF and it was addressed to the Chief Security Officer of the Prime Minister. It 
would have been an awkward interference with the investigation if this letter was 
produced from the Prime Minister' s office. 

It was understandable even if Bhutto was interested in shadows not falling on him when 
he was innocent. If the 7.62 mm bullets of Chinese calibre were used officially by the 
FSF only and if these bullets were not available underground, then it would have been a 
pointer only against the FSF and an inquiry should have been pursued. But this 
circumstance as it stood then was equivocal. 

Kasuri's complaint on the 11th of November 1974 soon after his father's death was not 
helpful to the investigators. The assailants were not identified. Even if the most 
improbable thing happened and the investigators dared to interrogate the Prime Minister, 
he would have admitted the incident in Parliament which was by no stretch of 
imagination "a threat extended to Kasuri". If the Prime Minister was questioned he may 
have lost his temper and even said, "I am sorry, this fellow was not killed and his poor 
father was killed". All this means nothing. If the Prime Minister was told 7.62 mm bullets 
of Chinese make were officially issued to the FSF, he would have even questioned 
Masood Mahmood who, guilty as he was, would have said, "These bullets are officially 
issued to many Army Units". So the investigation would have remained in square one 
and have made no breakthrough. Where then were they to begin? We now know that the 
further development in the investigation was after the promulgation of Martial Law and 
how the "beans got spilt" and the "cat was out of the bag" when Masood Mahmood made 
his confession and statement after many days of solitary confinement with many 
complaints hanging over him. He let the cat out of the bag and later put the whole crime 
on the orders of his Prime Minister whom the military authorities were pursuing. 

When Masood Mahmood was so powerful as Director General, would it have been 
possible for the investigators to have got anything out of him by subjecting him to similar 
treatment as he was given after the promulgation of Martial Law? On the other hand, the 

Judiciary in Crisis? Copyright © 44 

observations of CJ Anwarul, Haq on this point are both interesting and naive. "The 
cumulative effect of all these actions is that they are incompatible with the innocence of 
the appellant, for they all tended to shield the real culprits rather than to discover their 
identity. It is not difficult to see that if the investigation travelled in the direction of the 
FSF and Masood Mahmood in 1974, there was a danger of Masood Mahmood making a 
disclosure of the kind he made in 1977". There is a double fallacy in these observations. 

1. It goes on the premise that in such a case Masood Mahmood would have 
disclosed the alleged instructions of the Prime Minister to kill Kasuri. He had 
nothing to gain but had everything to lose by it. 

2. That Masood Mahmood would have obliged the investigators to travel in the 
correct direction by cutting the branch on which he was perched by admitting his 
guilt and that of Ghulam Hussain, Ghulam Mustapha and Rana Ifthikar. In any 
case his implicating Bhutto would have made things worse for him. 

The fact that the investigation did not progress cannot be held against Bhutto. The 
evidence of Saeed Ahamed Khan is at the highest consistent with the Prime Minister 
having been embarrassed by the unfair insinuation made by Kasuri and whatever he said 
or did does not necessarily prove his guilt. 

The judges of the High Court and the convicting judges of the Supreme Court have 
placed motive as the bedrock of their findings and the evidence of Saeed Khan as strong 
corroboration of Masood Mahmood. In dealing with circumstantial evidence, they have 
not considered the alternative hypothesis which is reasonable and consistent with 
Bhutto's innocence. They have also not considered whether all evidence led by itself 
apart from Masood Mahmood' s evidence, even slightly implicated Bhutto in the crime. 
They appear to have considered that Kasuri's statement on the 1 1th of November 1974 at 
Lahore soon after the incident is a prompt complaint of some great value. Whereas it was 
not. It was a statement about an undisputed incident in Parliament in June 1 974 that took 
place more than five months earlier. It remained no more or no less without any further 
circumstance. It was a different matter if there had been more reliable information 
regarding the identification of the assailants in which case there is a value attached to a 
prompt statement. In the present case it was a reference to an undisputed statement. It 
was hardly deserving the term of a "threat extended to Kasuri". In the hands of the 
investigators before the military regime, it was not possible for the investigators to have 
moved out of square one. Even some of the lines suggested by the Tribunal were dead 
ropes, e.g., to question the invitees at the wedding house, the number of shots fired, 
number of weapons used, inquiry from the residents of the area etc. It is now known that 
unless confessions were obtained, no progress could have been made to net Masood 

With regard to the non publication of the Shafir-ur-Rahman Report, it has been dealt with 
earlier. Investigation lines are not for publication and it may result in it being counter 
productive and there could be public interference with the investigations and false 
evidence placed before the investigators, either way, by rival political parties. There is 

Judiciary in Crisis? Copyright © 45 

nothing to suggest that the lines of investigations recommended by the Tribunal were not 
communicated to the investigators not, that investigators of any quality were in need of 
such recommendations. In the meantime, If there had been any obstruction on the part of 
Bhutto, why was Kasuri, if that was so, kept knocking untiringly at Bhutto's door for an 
audience and to ask for PPP nominations to stand before the people and ask for their 
votes under the leadership of Bhutto? If Masood. Mahmood's evidence is out, the rest of 
the case presented certainly cannot hang Bhuto. What is more, the evidence does not even 
implicate Bhutto in the crime. What about the presumption of innocence and proof 
beyond reasonable doubt? What about the benefit of any doubt being given to the accused? 
Finally, the case depends on the evidence of Masood Mahmood. He is the self confessed 
criminal who made his confessional statement while in solitary confinement and obtained 
his pardon. His confessional statement was in regard to an incident nearly three years 

His version about how he became a member of the conspiracy is most unnatural and 
contrary to all human probabilities. A strange story indeed to use threats and inducements 
to almost compel him to accept the Post of Director General of the Security Forces which 
was a very high post while he was languishing in a punishment post as Managing 
Director of the Group Insurance Fund. Again, he is abused and threatened to join the so - 
called conspiracy to kill Kasuri! Thereafter, he is found comfortably enjoying himself. He 
is described by the prosecution witness M.R. Welch as a ruthless enemy of anyone who 
crossed his path. Kasuri did cross his path with his attacks on the Government, the FSF 
and Bhutto. Bhutto could reply, Masood Mahmood could only react and retaliate in the 
manner he perhaps did. He was not the type who needed the orders of Bhutto to react and 
retaliate against the anti State elements among whom he counted Kasuri, according to the 
prosecution witness M.R Welch, whom the judges accepted as an independent witness. 

Judiciary in Crisis? Copyright © 46 


"What manner of man was he?" This man was the Director General of the Security 
Forces. He was arrested on the day on which Martial Law was proclaimed. His 
confession was recorded by the. Magistrate after he had been in detention for nearly two 
months. During this period he was in solitary confinement. He was interrogated by a 
Martial Law team. He was open to many charges for excesses of the FSF. A statement 
was made by Mian Abbas, Director of Operations in the FSF a gentleman 64-65 years old 
listing all the misdeeds of Masood Mahmood. He stated that he was dabbling in politics 
and harassing politicians. According to Mian Abbas he was guilty of other grave crimes. 
What happened to these other grave charges? Was he convicted or acquitted or did he get 
an overall omnibus pardon for all these alleged grave crimes? Mian Abbas was 
implicated by Masood Mahmood as the Director in the FSF who was also alleged to have 
been in touch with Bhutto and was supposed to be operating the plan to shoot Kasuri. 
According to Bhutto he had not laid his eyes on Mian Abbas - not even a minute's 
meeting with him alone or with officials. Masood Mahmood perhaps shoved the role of 
the chief operator for this dastardly plan on Mian Abbas a sexagenarian who was making 
all efforts to give tip his post. Mian Abbas had a better reputation than Masood Mahmood 
who has been described as a terror in the days of his power. Masood Mahmood killed two 
or three birds with one stone by implicating Bhutto and gaining his pardon and by 
implicating Mian Abbas and thwarting his accusations about his several misdeeds true to 
Director Welch's assessment of him, in his evidence. Did he diabolically fabricate a case 
against both Bhutto and Mian Abbas to bale out safe, when he found no other way out? 

One has, however, to be conscious of the fact that after all Mian Abbas was an accused, 
himself in detention when he made a statement. One has to be cautious about statements 
made by men in such situations. In the same way, there must be caution in relation to 
Masood Mahmood' s statements and testimony against Bhutto. One must be cautious 
about the statements made by Mian Abbas against Masood Mahmood. What is sauce for 
Masood Mahmood must be sauce for Mian Abbas too. Otherwise one may be guilty of 
double standards which was an accusation rightly or wrongly made against the judges of 
the High Court. 

Masood Mahmood was a University graduate, he joined the then Royal Indian Air Force 
as a Trainee pilot officer and owing to an accident he had to give up flying. He did a 
secretarial job and then joined the Police Services of Pakistan. He became Deputy 
Inspector General of Police. In 1969 he was selected as Deputy Secretary General 
CENTO which had its headquarters in Ankra. He came back to Pakistan as Deputy 
Secretary in the Ministry of Defence and was later promoted as Joint Secretary and 
additional Secretary. He was then appointed to a punishment job as Director, Board of 
Trustees Group Insurance Benevolent Fund. He was thereafter appointed as Director 

Judiciary in Crisis? Copyright © 47 

General FSF, on the retirement of Malik Haq Nawaz Tiwana. His version about how he 
was persuaded to take up this post is rather unnatural. But truth can be stranger than 
fiction. But judges usually are suspicious of that type of truth which is stranger than 
fiction. He is supposed to have been called by Vaquar Ahamed in April 1974 who 
discussed with him his private affairs, the health of his wife who was an asthmatic, his 
heart ailment, the young ages of his children, the Bank loan he had taken for the 
construction of his house, and how he could be retired etc. Now Vaquar Ahamed was not 
called as a witness. Apart from the question of admissibility, it has to be noted whether 
Vaquar Ahamad would have supported Masood Mahmood on this point and in any case 
the defence could not test the gist of the talk Vaquar Ahamed had with this approver, 
Keeping this in mind and the unusual nature of the conversation, this part of the 
approver's evidence must be accepted only after due caution. He had a talk with Bhutto 
himself and he was offered this post of Director General of the Security Forces. He gave 
the impression that like Ceasar he would have refused the crown but for the gentle 
persuasion by Vaquar Ahamed and Bhutto and the sweet and sour advice from the former. 
He was told by Bhutto not to terminate the services of re-employed officers like Mian 
Abbas and to keep Vaquar Ahamed on his right side. 

Then came the much mentioned incident in Parliament on the 3rd of June 1974 and the 
words of Bhutto which were blown up "to a threat extended to kill Kasuri". Masood 
Mahmood was a witness to it. A day or two later he was sent for by Bhutto who said he 
was fed up with Kasuri, that Mian Abbas knew all about his activities as he had been 
given all instructions through his predecessor Nawaz Tiwana (deceased) to get rid of him. 
He therefore told him to ask Mian Abbas to get on with the job and to produce the dead 
body of Ahamed Raza Kasuri, or "his body bandaged all over" and he added Bhutto told 
him that he will hold the witness personally responsible for the execution of the said 
order, i.e. to produce the dead body. Is it a natural story? Who is the conspirator in the 
position of a Prime Minister who would like the body of his political opponent produced 
for the whole world to see and know who the killers were? He went on to say he was 
thoroughly shaken and pleaded with Bhutto that the execution of this order will be 
against his conscience and it will go against the dictates of God. Bhutto, he said, lost his 
temper and said he will have no nonsense from him or from Mian Abbas. He raised his 
voice and said "You don't want Vaquar chasing after you again, do you?" The witness 
stated that he was compelled to accept the assignment out of fear for the personal safety 
of himself and his family. 

Is it natural or probable, usual or sensible for a Prime Minister of all people to enter into 
such a conspiracy to commit a foul crime in this abusive manner? Then he goes on 
prodding, directly, indirectly on the telephone and through others, If all this is true, it 
shows how reluctant Masood Mahmood was to obey this order and how helpless he was 
to refuse it. Was he that type of man who had built a reputation as someone whose path 
could not be crossed according to Welch the Director of the FSF in Quetta? He could he 
fix anyone with a fabricated case. Welch was not afraid to die, he said by which he really 
meant he (Masood Mahmood) could even kill a crosser of his path. We shall recall his 
words when he was cross-examined at the Trial "Any one who had served with Masood 
Mahmood could realise that the better discretion would be to keep quiet rather than 

Judiciary in Crisis? Copyright © 48 

contradict. In case I opposed his suggestion I would have forced him to take action 
against me so that what he told me would not leak out.... If I had acted otherwise he 
would have dubbed me as an officer disloyal to Pakistan and would have initiated action 
against me for that reason.... I had no fear regarding my life but Mr. Masood Mahmood 
could have instigated a case against me so that I did not divulge what he talked to and if I 
did, it would not be believed". What was this that he did not want to be divulged? It was 
his request to Welch to eliminate Kasuri and to look after the anti-state elements. He did 
not mention Bhutto at all. This man was giving orders to Welch in July 1974. What 
happened to him from the time he told Bhutto that producing the dead body of Kasuri or 
his body bandaged all over would be against his conscience and the dictates of God? 
What a transformation? Did all this happen between June 1974 and July 1974? With all 
the King's horses and all the King's men, the Prime Minister was in the parlour prodding, 
sending messages, telephoning, using the green line in an effort to get things moving. Is it 
a credible story? Is it probable? In Cafe China, Kasuri was attacking the FSF virulently, 
Kasuri was the one man who openly criticised Bhutto, the Government and the FSF. 
Whatever he said about the FSF was a direct reflection on Masood Mahmood. As 
Director General he was going on paying his Bank loans, we suppose, securing his job 
and the prospects of his young children and looking after his ailing wife. It is known that 
he was travelling a lot, staying in 5 star hotels with his family at home and abroad, 
purchasing luxury spectacles with hearing aids - this man who claimed to be sensitive to 
his conscience and obedient to the dictates of God. 

Here was the man, who after Bhutto warned him "You don't want Vaqar chasing you, do 
you?" went scampering according to his evidence like a mouse to Mian Abbas who 
comforted him not to worry and that he will look after the job. But we find him in July 
1974 only a month later a tough fully grown conspirator to murder not only Kasuri but 
other anti-state elements which was no part of Bhutto' s so called orders. 

Welch in no way says Masood Mahmood mentioned Bhutto's name, nor does Masood 
Mahmood himself claim he did. Perhaps the approver knew Welch will not support him 
on that point. Welch's evidence is very helpful to the defence and appears to reveal the 
fact that Masood Mahmood was master minding the conspiracy on his own and perhaps 
with a motive of his own for all the attacks on the FSF, the Government and Bhutto made 
by Kasuri. Welch's evidence shows also that the reports sent by him were routine reports. 

It is rather puzzling why his evidence was not welcome by the defence. It helps the 
defence in a big way. The reports sent to Mian Abbas were routine check ups. On the 
other hand the High Court and the judgement of the CJ Anwarul Haq treat Welch's 
evidence as corroboration. Their reasoning is that Masood Mahmood was given orders by 
Bhutto and the fact that Masood Mahmood on his visit to Quetta mentioned to Welch that 
all the anti-state elements must be taken care of and eliminated was supportive evidence. 
This also means that Masood Mahmood who felt a revulsion to comply with the orders to 
kill one individual had within a month grown into a monster who wanted all the anti-state 
enemies of Pakistan eliminated and according to Welch he said that this killing was 
expected of every loyal Pakistani. That was the man Masood Mahmood. Welch also said 
he understood by the terms ' take care' and ' eliminate' that they should be assassinated. 

Judiciary in Crisis? Copyright © 


Can such a man be believed when he stated all about his conscience and the dictates of 
God, one month earlier to Bhutto? 

There is one significant circumstance arising out of Welch's evidence and that is that it is 
a damning piece of evidence against Masood Mahmood who according to this witness 
was instructing him to take care of and eliminate the enemies of Pakistan - on his own 
and off his own steam. 

Welch has been accepted as an independent witness. Let us now read the observations of 
Anwarul Haq CJ., about this witness with which 3 other judges agreed. 

"It goes a long way in proving the conspiracy between Zulfikar Ali Bhutto, Masood 
Mahmood and Mian Abbas and shows their determined anxiety to eliminate Ahamed 
Raza Kasuri. Welch had no motive at all to falsely implicate any of them, nor had he any 
connection whatsoever with Kasuri". 

True, Welch had no connection whatsoever with Kasuri. He had no motive to falsely: 
implicate Masood Mahmood, Mian Abbas, or Bhutto. But he does not implicate Bhutto at 
all. With regard to Mian Abbas he has only sent routine reports. But he implicates 
Masood Mahmood and him alone. Not only does he implicate him but gives him a bad 
testimonial which has been referred to earlier that he is an efficient officer but a 
diabolical personality who would have fixed him if he crossed his path. 

It is difficult to understand how the prosecution thought he was a good witness for them, 
how and why the defence cross examined him and how the judges of the High Court and 
the 4 convicting judges of the Supreme Court thought he had supported the prosecution 
case. Equally it is difficult to understand how the defence did not see this witness as one 
who was very helpful to them. Even the acquitting judges did not see this aspect of his 
evidence. Haleem J., appreciated quite correctly that this witness did not help the 
prosecution case. On the other hand, no one on an evaluation of Welch's evidence saw 
the importance of his evidence from the Defence point of view. 

The plan to kill Kasuri was being worked according to Masood Mahmood from June and 
at last it was accomplished in November 1974 in Lahore. But it was Kasuri 's father who 
was killed. Masood Mahmood then related how he was with the Prime Minister in 
Multan on the morning of the 11th of November 1974 when he received a telephone call 
from the PM that Mian Abbas has made "complete balls" of the situation and that instead 
of Kasuri he had got his father killed. On his return to Rawalpindi, the approver stated 
that Mian Abbas met him and told him that his operation was successful but it was the 
intended victim's father who was killed. Later in the day, he went and met Bhutto who 
was peeved and agitated and told him the actual task has yet to be accomplished to which 
he replied "At your behest an idea conceived by you was carried out and communicated 
by me to Mian Abbas who had already your directions through my predecessor and the 
fact remains that both you and I and my subordinates will be taken to task by God 
almighty, but will not carry out any such orders anymore". Thereafter Bhutto "piped 

Judiciary in Crisis? Copyright © 


down" but kept on goading him to assassinate Kasuri. He categorically said "no". 
Thereafter he says attempts were made to kidnap his children from Aitchison College, 
Lahore. There was poisoning of food at Chamba House where he discovered that some of 
his own subordinates seemed to have been won over, as he saw them lurking around at 
places where they should not have been when he was around. 

In other words, he was a fugitive from an assassin's attack. We only know his children 
were never kidnapped, he never was poisoned and he had all the resources to deal with 
his "lurking" subordinates. He was never chased by Vaquar Ahamed. He never lost his 
job, he was never retired, he and his wife were going on foreign journeys and he 
continued to be in happy circumstances. How do these circumstances tally with the 
picture he had drawn and his compulsive fears which brought him into the conspiracy? 
According to his story, he defied Bhutto to his face and did not carry out his orders. Did 
he suffer all that he says he suffered and that too at Bhutto's hands for not carrying out 
the second order of the Prime Minister? Was there any evidence of that. Was he a victim 
of harassment for the next 2 14 years of the Bhutto regime or was he in clover? 

The witness admitted in cross-examination that he did a second trip to London for a 
Medical check up. He took his wife as an official attendant. Both of them stayed at the 
Intercontinental. He purchased two pairs of spectacles (fitted hearing aid) for £400. The 
witness was able to enjoy all these facilities evidently for the reason that he was able to 
throw his weight in Pakistan over the authorities. The Embassy in London gave him VIP 
treatment. Would he have enjoyed all this if he defied Bhutto to his face or fallen foul of 
Bhutto and the government? Wasn't he a sort of person in the midst of all this luxury who 
would have had a motive for eliminating Kasuri who was one of the few if not the only 
open critic of the FSF indirectly involving the Director General. It was really not 
necessary to involve his wife but questions were asked which were not correctly recorded 
in the High Court but referred to in the Supreme Court judgement in regard to the defence 
suggestion that he had no scruples to marry the wife of his friend and one time colleague 
in the Air force Manawer Ali Khan. It was perhaps an irrelevant though a true suggestion. 
On his evidence, this witness was not too happy to accept the post of Director General 
which was quite unusual especially for a man like him who was ruthlessly ambitious who 
loved power and authority. He had been twice sent abroad on a study tour of the forces 
equivalent to the FS F in West Germany, Belgium, USA, Japan and U.K. He stayed in the 
best of hotels, in deluxe suites which cost far above the costs allowed by the Government 

About the cost of his ' luxury' spectacles when asked who paid for them, his reply was 
the matter was under consideration at the time he was taken into custody in July 1977 but 
when he was confronted with a letter from the Pakistan Embassy to the Ministry of 
Interior division, he was forced to admit they were paid for by the Government of 

There were many other matters, too many to recount, where this witness gave very 
unsatisfactory evidence. Yet this witness utterly convinced all the judges of the High 
Court and the 4 convicting judges of the Supreme Court. None of these matters disturbed 

Judiciary in Crisis? Copyright O 51 

their judicial minds but on the other hand, his testimony appeared to have been treated 
sacrosanct and as an article of faith totally acceptable to 5 judges of the High Court, and 4 
Supreme Court judges in appeal. 

This witness was a self confessed criminal, protesting about his religion, God and his 
conscience. Should not his testimony have been examined in view of its improbabilities, 
its unsatisfactory nature, being evidence based on many statements made nearly 3 years 
after the events testified to, after many days in solitary confinement and with all the 
progressive impro limine is additions and omissions under the interrogation of the 
military authorities? The judges who accepted his evidence did not examine even the 
motive he had to implicate Bhutto to save his skin when he was called upon to explain a 
multitude of his misdeeds. The motive to kill Kasuri was made the basis of the conspiracy 
while the motive for Masood Mahmood to implicate Bhutto falsely to save himself was 
totally ignored. 

This was not done by the judges of the High Court and the convicting judges of the 
Supreme Court. None of these matters disturbed their judicial minds. Were they right 
after all? They totally accepted the submissions of the prosecution. 

When one treats him as an accomplice, the law only says "accept his evidence if you 
believe it but examine it a bit and as a matter of prudence look for some corroboration 
from another source independent of the accomplice which implicates the accused". Did 
all that Welch says implicate Bhutto at all or necessarily in the conspiracy? 

The Counsel for the prosecution was at great pains to submit the proposition that the 
degree of corroboration should vary under varying circumstances that is to say an 
accomplice like Masood Mahmood who claimed to have been pressurised or compelled 
to sin need not have his testimony strongly corroborated. In other words the rigour of the 
rule that an accomplice must be corroborated in a material particular by independent 
evidence could be slackened in the case of a pressurised accomplice. What about a 
pressurised witness compelled by circumstances to implicate another to obtain a pardon 
himself to save his skin? 

The judgement of the High Court and the majority judgement of the Supreme Court 
observed that Masood Mahmood got many favours from Bhutto and he had no reason to 
implicate Bhutto. The approver on the other hand did not concede this in his evidence. 
His position was that he was being hounded and harassed. Attempts were made on his life, 
he said, attempts to kidnap his children, attempts to poison his children, and there were 
his lurking subordinates behind every bush. The facts on the other hand indicate that he 
continued to wield power and authority as ever before. These learned judges were even 
asked to consider many cases which established the principle that the strict rule of 
corroboration could be slackened in certain type of cases. We have outlined some of the 
infirmities and improbabilities in the testimony of Masood Mahmood. 

In the totality of all this evidence led, did any item of evidence independently and 
unerringly point the finger of guilt either singly or cumulatively with other items at 

Judiciary in Crisis? Copyright © 52 

Bhutto that he was in the conspiracy. Were all these items of evidence conclusively 
without any reasonable doubt consistent only with the guilt of Bhutto and totally 
inconsistent with any reasonable hypothesis of his innocence? 

The judges of the High Court and the 4 convicting judges of the Supreme Court that is to 
say the judgement of the High Court and the majority judgement of the Supreme Court 
appear to have arrived at the answer first and did the reasoning thereafter. They 
completely ignored the elementary principles of Law like the presumption of innocence, 
proof beyond reasonable doubt, the benefit of a reasonable doubt and the application of 
the law in relation to circumstantial evidence, motive and corroboration in this particular 
case. It is most unfortunate that these judgements were not fair by the judges themselves 
who wrote them or the judges who subscribed to them. 

When considering the case of pressurised accomplices or participants in the crime, we 
must also consider the case of pressurised witnesses who make confessional statements 
implicating the man whom the authorities want. It cannot be ruled out that Bhutto was the 
much wanted person pursued by the Martial Law regime? Here was a man who was to 
lead the Pakistan People's Party at the promised General Election. Could they have risked 
his coming back to power after all that happened since the promulgation of Martial Law? 

Another matter, to bear in mind even if it did not disturb the minds of the convicting 
judges of the High Court and Supreme Court was the fact that Masood Mahmood was 
given a pardon on condition that he will adhere to his confessional statement. That is in 
accordance with the law. In other words the star witness for the prosecution could not 
afford to even deviate into some truth. He made a confessional statement to save his skin 
and obtained a pardon. He had to stick by it thereafter or improve on his confessional 
statement. Masood Mahmood was thus 

(1) an unsatisfactory witness 

(2) He was an accomplice and a participant in the crime 

(3) He coughed out his guilt nearly three years after the crime 

(4) He made his confessional statement long time after he was arrested, detained and kept 
in solitary confinement 

(5) There were many other charges against him 

(6) He implicated Bhutto and that was his life belt. 

(7) He was not only an accomplice, he was a pardoned witness who had a motive to 
implicate Bhutto. 

(8) If he did not implicate Bhutto, Bhutto could not have been even charged in the case. 

(9) He was an indispensable witness for the prosecution. 

(10) He obtained his pardon on condition that he will abide by his confessional statement 
and implicate Bhutto. 

Hardly any one of these matters were examined by the convicting judges. None of these 
matters disturbed their judicial conscience. On the other hand they swallowed the total 
evidence of Masood Mahmood hook, line and sinker. 

Judiciary in Crisis? Copyright © 53 

Masood Mahmood had many other crimes to account for besides the killing of Kasuri' s 
father. Falsely implicating Bhutto, so pleasing the authorities could have been the only 
salvation for him and his family, when he found himself caged in solitary confinement 
with the real prospect of the skies falling on him and his family. 

Judiciary in Crisis? Copyright © 54 


The Trial of Bhutto and others in the High Court of Lahore was before the following 

Mustaq Hussain CJ. 
Zakuddin Pal J. 
M.S.M. QureshiJ. 
Aftab Hussan J. 
Gulbaz Khan J. 

The trial commenced on the 11th of October 1977. The special Public Prosecutor was 
Ijaz Hussain Batalvi. Bhutto was defended for part of the proceedings by D.M. Awan 
Ihsan Qadir Shah, Inayatullah. Mian Abbas by Sadiq Ikram and the others by Irshad 
Ahmad Qureshi. 

As stated earlier Bhutto's defence on the conspiracy and murder charge was a complete 
denial and so was the defence of Mian Abbas, but the others took up the position that 
they acted in obedience to superior orders and under duress. They took up the position 
that they were brain washed and they had lost their will and were not free agents. They 
confessed to the facts against them. 

They were all found guilty on the 18th of March 1978 and were sentenced to be hanged. 
We have specially dealt with the case against Bhutto. 

There were many sad and unfortunate incidents while the trial proceeded and at the outset 
before the trial commenced. It certainly cannot be said that the trial was conducted 
without heat and in a cool atmosphere conducive to a fair trial or what even appeared to 
be a fair trial so much so that it cannot be positively conceded that justice appeared to 
have been done as far as Bhutto was concerned. 

The situation in the country was tense, the investigation was conducted by a team of 
Martial Law Authorities, and the principal witnesses were self confessed criminals who 
made their confessional statements after a long period of indefinite detention and solitary 

The reader is requested to turn back to Chapter III and note the relevant events in their 
chronological order. This will give an idea of what was happening outside and inside the 
Courts and set the hearing of the trial in its proper context. 

Judiciary in Crisis? Copyright © 55 

There is no question that from the 5th of July 1 977 the Military regime under General Zia 
was in complete control of the Government. The powers of the judiciary and the 
executive were under the military authority and the legislature ceased to function. Every 
one in Pakistan was in full realisation of this fact and judges too were fully sensitive to 
this fact which was as large as life. We could not have expected the judges to have been 
insensitive to the new forces both in the literal arid mataphorical sense. The trial 
commenced on the 1 1th of October 1977. About a month earlier on the 6th of September, 
General Zia in an interview with the New York Times stated that he had personally 
authorised Bhutto's arrest. He had no knowledge he observed of "What type of leader we 
had. Mr. Bhutto was a Macchiavelli in 1977... an evil genius running the country in more 
or less Gestapo lines, misusing funds, blackmailing people, detaining them illegally and 
even perhaps ordering people to be killed". 

It was really a matter for favourable comment that at this time Justice Sandani of the 
Lahore High Court released Bhutto granting him heavy bail. It was stated in German 
Newspaper (Conservative) that Justice Sandani later was transferred as Law secretary. 
Despite the Court release Bhutto was arrested and detained by the Military Law 
Authority. On the 15th of September 1977, General Zia told the Urdu Digest that Bhutto 
is a cheat and a murderer. He also stated that on available evidence he will not be able to 
escape severe punishment. 

However, on the 17th of September 1977 General Zia broadcast a statement which must 
have made the judges to feel that he will be giving complete freedom to the judiciary and 
the Press and the Elections he promised within 90 days of the 5th of July 1977 would be 
held soon after the Bhutto trial. He also promised a fair trial for Bhutto. He emphasised 
that Justice and Democracy demanded that Bhutto and "his colleagues" should be given 
every opportunity to clear their names. The inquiries were to start at once. The verdict 
about their guilt or innocence was to be given before the elections which were only held 
more than 8 years later! 

The Trial for murder was not the only problem that Bhutto had to face; there were 
accusations and threats to try him for various abuses and misuse of power during his 
regime before Military Tribunals. His wife Nusrat Bhutto and his daughter Benazir 
Bhutto were from time to time put under house arrest. It cannot be denied that Bhutto 
and family were put through a very hard time and through a trying experience and to say 
the least Bhutto was not having the facilities and not being afforded the best possible 
opportunities to present his defence. Some of the statements made by Kasuri, Masood 
Mahmood and others were not supplied to the defence. 

Another matter of significance was that the elections were to be held soon after the 
Bhutto's trial. In other words the elections were to be after he was found guilty or 
innocent of the crime. In the circumstances the verdict was inevitably going to be a 
determining and a deciding factor with regard to the elections. For instance what if 
Bhutto was found not guilty and a general election was held thereafter? 

Judiciary in Crisis? Copyright © 56 

What then would have been the verdict of the people against the Martial Law Authorities, 
the privileged few and the vested interests who had or were regaining their lost privileges 
and interests? The fate of Bhutto was to be inextricably interwoven and connected to the 
results of the elections if after all they were to be. If Bhutto came back to power, what 
would have been the possible fate of even the prosecutors, investigators and even the 
judges some of whom had hailed Zia, as a National Saviour? People are human and 
subjectively they would have had their fears and perhaps these fears would have been at 
least in their subconscious mind. Important human exercises cannot be free of certain 
psychological factors at a time when there was so much tension in Pakistan. It was 
altogether unfortunate. It cannot be denied that the circumstances were heavily loaded 
against Bhutto. There were so many demonstrations and protests in different parts of the 
country and in Lahore where the trial was held. There had been flogging and arrests of 
these demonstrators by the Military Authorities. The atmosphere was certainly not 
congenial and conducive to a fair trial. We must also take note that at a time such as this, 
how few were in a position to help Bhutto in the preparation of his defence and could 
have given assistance or moral support? Certainly his enemies would have been active. 
These human realities cannot be disregarded. 

There was a complete constitutional breakdown. General Zia of course reassured 
everybody that the constitution had not been abrogated but it was only in abeyance and 
that democracy would be restored after the elections which would be held after all the 
sinners were identified and given the treatment they deserved. For 8 long years these 
elections were not held! 

On the 22nd of September 1977, Yakub Ali Khan CJ., was retired and Anwarul Haq was 
appointed Chief Justice. In the meantime there was an application before the Supreme 

It was a Habeas Corpus application filed by Begum Nusrat Bhutto challenging the order 
of arrest and detention of her husband as being unconstitutional and illegal. On the 23rd 
of September 1977, however, the New Chief Justice took his oath of office along with 
other judges of the Supreme Court omitting the paragraph whereby the judges had to 
swear the oath of allegiance to the 1973 constitution "to preserve, protect and defend the 
constitution". All the said judges had earlier taken oath inclusive of the said abandoned 
paragraph when they assumed their respective offices. In other words they breached their 
earlier oath and did not keep their faith. Understandable it was, yet it was an 
understandable fact. It was in this immediate context that the trial in the High Court 
commenced on the 11th of October 1977. (vide Keesing' s Contemporary Archives) 

It is not without significance that the unconstitutionality of Bhutto's arrest and detention 
were considered by the judges of the Supreme Court who owed no allegiance to the 
constitution while hearing the Habeas Corpus application presented by Begum Nusrat 
Bhutto and on the 10th of November 1977, the said application was dismissed. They also 
held that the imposition of Martial Law although an extra constitutional step was 
validated by the "doctrine of necessity" as the moral authority and the constitutional 
authority of Bhutto's Government has completely broken down; it was in this situation 

Judiciary in Crisis? Copyright © 57 

that the Bhutto's trial took place, his appeal was heard and he was at last hanged. The 
judges therefore owed no allegiance to the Constitution and Pakistan was not ruled in 
accordance to its constitution. It may even be stated with a considerable measure of 
justification that even the Courts of justice and the judges were only de facto institutions 
and de facto holders of office respectively. 

Various objections were taken and many were the applications that were made to transfer 
the trial to another Court and these applications were made at the beginning and in the 
course of the proceedings. It was unfortunate that bickerings were taking place 
continuously and all the objections and applications were turned down and these episodes 
ended in the "in camera" proceedings in the High Court and the boycott of the 
proceedings by Bhutto. The whole trial was conducted in an altogether tense and heated 
atmosphere and an inescapable impression was created that the defence and the judges 
were in open confrontation with each other and situations developed which created hard 
feelings between the judges and Bhutto and the judges and counsel appearing for Bhutto. 
No one interested in the dispensation of justice would welcome such a situation in Court 
especially trying an accused on a capital charge. It is not necessary to deal with the legal 
merits or the right orders and the possible wrong orders made in the course of the 
proceedings. After all if judges make mistakes, they can be set aright in the Appellate 
Court. Reference therefore will be mainly confined to the major episodes i.e. the transfer 
applications, the in camera proceedings and the boycott of the proceedings by Bhutto. It 
would appear that the Court steam rolled over all these applications rightly or wrongly 
and proceeded to give a unanimous judgement against Bhutto with what could appear a 
remarkable disregard and insensitivity to the traditional forms of justice. There was more 
than one serious crisis during the proceedings. All of them were certainly not created by 
the Court. A few were the creation of the Defence but most of them were avoidable if the 
Court had consciously made an effort not only to do justice but appear to do justice. It is 
a matter for sad comment that the oppressive tensions outside the country seemed to 
pervade inside the Court, affecting the judges, counsel and the accused Bhutto in an 
altogether unfortunate overall situation. 

Before the start of the trial the principal accused as Bhutto was called by the High Court 
judges challenged the constitution of the Court on the ground intar alia the Chief 
Justice's appointment as Chief Election Commissioner and his televised Press interview 
provoked an immediate reaction from the PPP which under the Chairmanship of Bhutto 
passed a resolution condemning him. This was also released to the Press. This resolution 
alleged partisanship against Justice Mushtaq Hussain. The objection lamented that there 
was a travesty of justice in combining the offices of the Chief Election Commissioner 
with that of the Chief Justice of the High Court. 

It went on to allege that Justice Mustaq Hussain on the retirement of Justice Iqbal as 
Chief justice in 1976 was superseded during the Bhutto regime although he was the most 
Senior Puisine Justice of the Lahore High Court and therefore had a grievance against the 
party. This allegation was also repeated in the application for transfer on behalf of Bhutto 
before the High Court and Supreme Court. When the Defence made these applications, 
the High Court dismissed them in limine on the 9th of October 1977. 

Judiciary in Crisis? Copyright © 58 

It is unfortunate that there was this refrain again and again during the proceedings after 
some incident in Court. It is all the more regrettable because after an interim order made 
on the 24th of September 1977 with regard to the commencement of the proceedings in 
the High Court, Bhutto did state as follows "I have the fullest confidence in Your 
Lordship's Court." This happened when Bhutto's junior counsel Affab Gul on that day 
which was the first date of hearing of the case requested for three weeks adjournment for 
preparation. The Bench adjourned for 7 days with the assurance that a further 
adjournment will be considered if necessary. Junior Counsel protested whereat the Court 
asked him what he meant by saying "even after Mr. Bhutto had made a request for 
adjournment of the case for 3 weeks." Bhutto had been formally indicted only about 12 
days earlier. Perhaps the High Court proceedings started on the wrong foot. 

Many unfortunate circumstances followed thereafter. These were applications which 
were all rejected in limine on the 9th of October 1977. All this happened in the 
background of directions given by the military authorities that the inquiry must be 
commenced without delay. Anyway the trial commenced on the 11th of October 1977. 
On the 13th of November Bhutto fell ill. The medical certificate supported the fact that 
Bhutto was suffering from respiratory infection, gastritis, acute influenza with debility 
and high fever. The Court adjourned till the 15th of November 1977 but the Court rather 
callously and prematurely warned counsel that there is a provision in the law to carry on 
in the absence of Bhutto as long as his counsel is present. On the 1 5th of November, 
Bhutto was not present. He had not recovered from his illness. The hearing was resumed 
regardless of Bhutto's absence. The application for further adjourn-merit was refused 
despite the report of Professor Ifthikar Ahamad Secretary for Health, Government of 
Punjab after he examined Bhutto. He was continuing to have acute influenza, temperature, 
debility with severe nasal conjunctive congestion. 

On the 25th of November 1977, Bhutto wrote to the Superintendent of Prisons Lahore 
that he is slightly better but cannot attend Court for 5 hours at a stretch. The Court instead 
of accommodating the accused directed that the accused be examined by a Medical Board 
constituted by it. It was not necessary to appoint this Board as Bhutto himself had said he 
was only feeling weak. On the 26th of November, prosecuting counsel reported that 
Bhutto refused to be examined by a Board as he said he was not suffering from any 
organic disease. He only needed rest and that he will be able to attend Court on the 3rd of 
December, We find that during Bhutto's absence between the 13th of November and the 
30th of November, 15 witnesses had been examined and cross examined, regardless of 
the accused's inability and difficulty to attend Court. 

It will be useful to take stock at this stage of all the unfortunate incidents that had taken 
place up to the 30th of November 1977 to understand how on the one hand the Court was 
exasperated with the accused and on the other hand' the diffidence of the accused in his 
getting justice from the Court was gathering. As stated, on the 24th of September 1977 at 
the very outset the Court was grudging the accused a 3 weeks adjournment to prepare a 
case on an incomplete and inadequate brief. This surprised the junior Counsel and he 
protested. The Court wanted to know what he meant by saying what he said viz, "Even 

Judiciary in Crisis? Copyright © 59 

after Mr. Bhutto had made a request for an adjournment of the case for 3 weeks, the 
Court had granted a shorter adjournment". Bhutto intervened and stated "My Lords, I 
have the fullest confidence in Your Lordship's Court". This remark of Bhutto was flashed 
in the next day's newspapers that Bhutto stated that he had the fullest confidence in their 
Lordship's Court. On the same day that Bhutto read this, there was already an application 
before the Supreme Court to the effect that he feared that the Chief Justice was 
prejudiced against him and since he would not get a fair trial, the present constitution of 
the Bench should be different. This application was-being supported, having already been 
filed in the Supreme Court on the very same day. 

The intervention was to save the situation. He did not want the Court to pounce on his 
counsel nor for his counsel to say anything which could infuriate the Court further. Here 
was an order which was alright by him and if a week's adjournment was given and after 
that further adjournment given if necessary after consideration as the Court indicated 
there was nothing to quarrel about and moreover-there was an application pending about 
the constitution of the Court which included the Chief Justice. 

The press did the mischief most unfortunately. Anyway it carried Bhutto's remark "I 
have the fullest confidence in You Lordship's Court". Bhutto objected to this news item. 
He stated that this confidence was limited to the order made by the Court about the 
adjournment and he did not express general confidence. Bhutto said it was inconceivable 
that he said he had the fullest confidence generally in the Bench when he had specifically 
instructed his counsel in the Supreme Court against the prejudice and partiality of the 
Chief Justice. The Trial Bench rejected this explanation in its order dated the 9th of 
October as "Not worthy of credence" thereby disbelieving Bhutto who was yet to be 
believed at the trial. With great respect, it is difficult to agree with the rejection of this 
explanation. Bhutto had the right to explain the news item and the way it was recorded, 
though he may not have had the foresight and prudence to realize that it was this Bench 
that was finally going to try him. On the other hand if the Chief Justice instead had 
observed "Mr. Bhutto, you made the remark and you should know best what you meant. 
We were happy up to this moment that you had confidence in. us. You disappoint us. But 
we have the confidence that we will do justice by you", the matter would have ended 

In such situations, a judge who has no brief to defend himself and is in a privileged 
position can afford to be large, can afford to even laugh at himself and earn respect for all 
the more reason. A judge always gets the respect that is owing to the institution but he 
earns the personal respect of the Bar and the persons before him when he is objective and 
dispassionate. Even when rather hurtful remarks are made against him, he must ignore 
them or if he wants to reply, his observations must be of a much superior quality which is 
least hurtful. This was altogether an unfortunate incident when the court put itself in issue 
and disbelieved the accused even before the trial commenced. Bhutto's explanation was 
totally acceptable. When he was pursuing his application for transfer in the Supreme 
Court, he could not have at the same time expressed general confidence in the High Court. 

Judiciary in Crisis? Copyright © 


On the matter of the illness of Bhutto, there was no dispute on the question of his illness. 
It was fully supported by the Medical Certificate. It was utterly unnecessary when all that 
was asked for was a two day adjournment, for the Bench to have warned the. Counsel 
that he must be prepared to go on without his client on the 1 5th if he was still ill and 
reminded him that there were provisions to meet the situation in that event. They were 
referring to section 540 of the Criminal Procedure Code which reads. 

"(1) If at any stage of the inquiry or trial under this Code, when two or more accused are 
before the Court, if the judge or Magistrate is satisfied for reasons to be recorded that any 
one or more of such accused is or are incapable of remaining before Court, he may if 
such accused is represented by a pleader dispense with his attendance and proceed with 
such inquiry or trial in his absence, and may at any subsequent stage of the proceedings 
direct the personal attendance of such accused; 

(2) If the accused in any such case is not represented by a pleader or if the Judge or 
Magistrate considers his personal attendance necessary, he may if he thinks fit adjourn 
such inquiry or trial or order that the case of such accused be taken up or tried separately" 

When the Court told defence Counsel that it could dispense with the presence of the 
accused as soon as the application was made for a two day adjournment it could have 
created the inevitable impression that the court was only keen to finish its task as soon as 
possible. It almost warned the counsel that if Bhutto does not present himself on the 15th, 
it could make use of section 540 (1). The Court expressed its impatience and also gave 
the impression that it was trying to satisfy the Martial Law authorities by following its 
instructions to speed up the trial before the elections, forgetting that the most important 
personality in the trial was the accused who must be given the best opportunities to 
defend himself. The General Elections which never came for another 8 years was not the 
problem for a Court trying an accused person on a capital charge. The other work of the 
High Court when 5 Judges were participating in the Bhutto trial was not the problem for 
the court trying an accused on a capital charge. The only task before them which they 
appeared to have forgotten was to do justice by the accused and of course by the 
prosecution. The other accused did not object or complain and even the prosecution did 
not express any wrong views. So why did the Chief Justice jump the gun and quite 
prematurely decide to act under the said section? If the court was in a hurry, they had no 
business to participate further in a trial of this nature. While on the subject of the injustice 
done to the public by the laws delays, this is perhaps one of the few cases where Judges 
were in a hurry to do what they thought was justice. The fact that Bhutto was ill was 
never disputed. On the other hand, the Chief Justice made a sarcastic remark from the 
Bench which naturally created resentment in the ranks of the defence. When the accused 
was applying for the adjournment through his Counsel and the Court had decided to 
appoint a Board to medically examine him, the Chief Justice called for one of his two 
stenographers but both had not yet shown their presence inside Court. He is then 
supposed to have told his private secretary loudly, "Khokar where have the other two 
fellows gone? I hope they are not suffering from influenza". It was certainly an uncalled 
for remark. Counsel heard this remark. But it was denied by the presiding Judge and it 
was said that Khokar was the reader of the Chief Justice and not his private secretary. 

Judiciary in Crisis? Copyright © 


The credibility of the Chief Justice was straightaway put in issue with the credibility of 
the Defence Counsel. It was unfortunate that the 4 convicting Judges of the Supreme 
Court took the view that dispensing with Bhutto's attendance was permitted under section 
540 of the code. They observed "In view of the importance of this case a large Bench of 5 
Judges had been specially constituted for its disposal on the criminal original side of the 
High Court and the prosecution evidence was being recorded almost from day to day as 
usual in all murder trials. The importance attached to this case and the circumstances 
prevailing in the country demanded that it should be disposed of on the merits without 
any inordinate delay". With great respect one has to bow to the superior wisdom and 
sense of justice of these Judges, but one cannot understand; 

(1) how the importance of the case should hustle the Judges to dispense with the 
accused's presence when originally only a two day adjournment was asked for? 

(2) How the importance of the case should affect the interests of an accused? To 
whom else was it important? 

(3) What was the importance of this case and for whom that it should have gained 
judicial notice? It was certainly a matter of importance also to the accused. 

(4) Does the importance of a case supersede the interests of justice? 

(5) What is "the importance attached to this case" and what are "the 
circumstances prevailing in the country" demanding the quick disposal of this 

(6) Who attached importance to this case? 

(7) Can the importance attached to a case and the circumstances prevailing in the 
country be a deciding factor to determine the dispensing of the presence of an 
accused and the jettisoning of the interests of justice? 

The interests of justice ought to have been the one and only deciding factor when the 
discretion to proceed with the trial in the absence of the accused was exercised. 
According to the defence, there were many other insulting remarks made by the Chief 
Justice. Many times Bhutto was asked to keep standing. He was placed behind the dock 
and was given a chair with the observation made by the Chief Justice "We know you are 
used to a very comfortable life". It was the defence submission that a dock was put up in 
Court for the "principal accused" to cage and humiliate him with the result he was not 
able to give instructions to his lawyers. There was one occasion according to the defence 
when the Chief Justice with venom referred to a hypothetical case of Judges being 
superseded for the appointment of a Chief Justice. It was certainly an unwise observation 
of the Chief Justice who was in fact one of the Judges who was superseded during 
Bhutto's regime and as a result had to wait long to be a Chief Justice about the time of 
the hearing of Bhutto' s trial. 

Judiciary in Crisis? Copyright © 62 

The Chief Justice also gave an interview to two foreign correspondents one of them being 
Mr. Mark Tully, the BBC representative. This interview was broadcast by the BBC and 
reported in the Pakistan "Times" and in the National Newspapers. He spoke about 
Common Law traditions and that he was disappointed that the Amnesty International did 
not send observers etc. He said how the case was being tried by 5 Judges although the 
law required only 2 Judges. This was most unusual for a Judge to protest so much about 
the fair open trial that was to be and never was soon after. This interview was ill advised. 
For whose benefit and for whose sake was this interview? Judges must realise that the 
most important person they must satisfy that there would be justice done will be the 
accused which the Chief Justice, with great respect, failed to achieve as far as Bhutto and 
his Counsel were concerned. It is true that everyone should be equal before the law. 
There need be no special treatment for a VIP, but it does not mean ever that because a 
person is a VIP he gets a different treatment for the worse from what an ordinary citizen 
gets. The law must be fair both to the ordinary citizen and to a VIP. 

The Chief Justice was harsh to Bhutto's Counsel who was a Senior member of the Bar 
and was very often rude and insulting referring to the quality of his cross-examination. 
No doubt he was only one of the 5 Judges but judicial behavior of the presiding Judges 
was never redeemed by any of the 4 remaining Judges. As we stated earlier the case 
commenced on the wrong foot. We must be mindful that a complaint and an application 
for transfer to another Court had more material when a second application was made in 
January 1978, including Mark Tully' s interview and the insulting remarks to the accused 
and Counsel etc. The trial was on its 5th and 6th day when there was an incident between 
Bhutto's Counsel D.M. Awan and the Chief Justice in a loud tone shouted "sit down" and 
refused to hear him whereupon Mr. Awan helplessly remarked "My Lords, we know that 
all the restrictions are for the Defence Counsel". This observation imputed partiality and 
it should never perhaps have been made. It must have, however, been provoked by some 
cause given by the Bench. The judge severely reprimanded Mr. Awan and when the latter 
looked at him in astonishment, the Chief justice screamed at Mr. Awan "Why are you 
staring at me"? The Chief Justice warned the press not to report this incident. On the 16th 
of October, the next day, Counsel was ill and unable to attend Court and Kasuri' s cross- 
examination was resumed by another Counsel on behalf of Mr. Awan. This happened 
within a few days of the trial and the tension kept mounting thereafter. 

On the 17th of December after Mr. Bhutto' s illness: it so happened that Bhutto wanted to 
draw the attention of his Counsel from where he was behind the dock, and when he failed 
in his attempt he uttered the words "damn it". The Chief Justice heard this and pulled up 
the accused asking him not to address his Counsel like that. Bhutto replied, "I have had 
enough of this". No one would say that the Judge had no powers to control the 
proceedings, no one would say that Bhutto was correct when he uttered the words "Damn 
it" but the whole episode was avoidable and the Chief Justice could have ignored the 
words and not made an issue of it when it was not a matter between him and Bhutto. 
Besides the exclamation "Damn it" was not addressed to Counsel. It was just an 
expression of frustration. Later Bhutto explained that he was tensed up as he had heard 
that day that his wife had been attacked and had received a head injury when she had 

Judiciary in Crisis? Copyright © 


gone to witness the Pakistan v. England Test match. This episode took place on the day 
the Court wished to sit through the winter vacation. Bhutto was taken out of Court on 
orders of the Court. This incident again need not have gone so far. The Court could have 
dealt with the situation differently. In a situation like this it was easier for Court if it did 
not want to allow the "Damn it" remark to go unnoticed to have turned to Bhutto and 
observed, "We are sure Mr. Bhutto, you don't mean it. Your Counsel can be sensitive". 
The Court instead involved itself with its dignity etc. and as a result contributed by it's 
over reaction to the great indignity of the Court proceedings. 

There was an incident in a court in Sri Lanka, when a lady Counsel was cross-examining 
a lady witness and the cross-examination lapsed into comments, and a running 
commentary of the witness's evidence. The Court was ignored. The prosecuting Counsel 
strongly objected to this manner of cross-examination. The Judge knew that if he pulled 
up the lady Counsel, it would have been unfair by her client and further it would have 
been unchivalrous on his part. So he addressed the prosecuting Counsel and with a wink 
shouted at him "Mr. Prosecutor, I am surprised at your manners, when two ladies are 
engaged in a delightful conversation, you must not distract them, surely." The lady 
Counsel looked at the Judge, blushed and with an apology resumed her cross- 
examination in the proper way. The judges of the High Court and the Chief Justice never 
consciously or unconsciously relieved the mounting tensions in Court. Instead they or 
rather the Chief Justice generously contributed to the gathering tensions. It will be nice 
for learned judges to cultivate a sense of humor and have a capacity to relieve tensions 
rather than create them. It was very unfortunate indeed that none of the 5 Judges 
displayed any sensitivity to prevent this gathering tension. It was also a matter for 
complaint that the Chief Justice and the other Judges, as alleged, used to cover the mikes 
in front of them lest what they said which they ought not to have said got taped. 

On the 11th of January 1978 in the course of the cross-examination of the witness 
Ghulam Hussain, the witness said the sten gun had been obtained for use against the 
Chief Justice. The witness later corrected that by Chief Justice he meant retired Justice 
Syed Hussain Rizevi and the CJ. observed that he should have said Judge and not Chief 
Justice and the turn of the Chief Justice had yet not come whereupon Bhutto remarked "It 
will come". The CJ., directed the officer in charge of the Police on court duty to make an 
entry at the nearest Police Station and observed that if anything like that did happen 
someone would be accountable for it. The Court was not able to ignore this light banter 
with equanimity. It becomes abundantly clear on examination of the proceedings that the 
Bench failed to control the proceedings and maintain the dignity of court due to a 
manifest hostility displayed towards the principal accused. Consequently the original 
application for transfer made by Bhutto appeared to be justified by reason of the 
subsequent judicial behavior of the Chief Justice. 

Two references are being made to the legal objection to various items of evidence on 
grounds of hearsay and the rulings made against the defence. As earlier stated Judges 
have the authority to make their ruling as they consider right. Complaints, however, were 
made that all the objections taken by the defence were over- ruled and all the objections 
taken by the prosecution were upheld. 

Judiciary in Crisis? Copyright © 64 

Even at the close of the prosecution case, Bhutto made an application on the 22nd of 
February 1978 that the prosecutor should be called upon to sum up his case against him so 
that he could reply. This was rejected on the basis that the Criminal Procedure Code 
gave the right of reply to an accused only if neither he nor any one of his co-accused 
called evidence in their defence. The Judges held that this was a mandatory provision. In 
the present case Bhutto did not call any defence and his position was a total denial and 
was quite different from the defence of the other accused. In other words the defence 
called by the other accused had nothing to do with Bhutto's defence. This was a case 
where there should have been a liberal interpretation given to the relevant provisions 
relating to the right of reply. Bhutto then refused to argue his case. It was a very 
appropriate case where a liberal interpretation should have been given in favour of an 
accused who called no defence. 

Besides, he had no counsel and for 1 5 days of the proceedings, the trial proceeded in his 
absence; he should have been given a fair opportunity to meet the prosecution case 
against him after the prosecution stated its case. The High Court thereby was never able 
to consider the defence position in their judgement. The accused Bhutto declined to argue 
his defence when the High Court did not allow his application that the prosecution must 
state its case against him first. The better view is that this application should have been 
allowed and no grave injustice would have been done to the prosecution. On the other 
hand, the defence submissions may have helped the Judges to consider the defence more 
fully which they failed to do in their judgement. The Court had discretion to allow the 
application and one cannot agree that the provision is absolutely mandatory. The Court 
has a discretion in the interests of justice and no one could have complained. Complaints 
were made that all the applications made by the prosecution were allowed. This is true to 
a large extent but it is not necessary to go into detail over them except in relation to PW 
3/1 6-D referred to earlier pertaining to the photostat copy of a report by Saeed Ahamad 
Khan about Kasuri wanting an audience with Bhutto dated 29/7 and Bhutto's 2 
endorsements to the effect that Kasuri must be kept on the rails and that he is a lick etc. 
These endorsements were held to be inadmissible as the defence had not summoned the 
prosecution to produce the original of the document under section 65 of the Evidence 
Ordinance. It was found later that the prosecution was summoned to produce the said 
document which could not be traced in the Prime Minister' s office. The endorsements 
were ruled to be inadmissible on the wrong ground but what was worse was that these 
endorsements were held to be "clearly forgeries." The cumulative effect of all these 
circumstances, scenes and episodes were very harmful for the conduct of a just trial and 
one gets the impression that the defence was at issue not only with the prosecution but 
with the judges. Let the reader answer the question whether Zulfikar Ali Bhutto got a fair 
trial in all these circumstances. 

Of course the Supreme Court in appeal did answer this question. Four of the judges who 
convicted Bhutto examined all these circumstances and said that substantial justice was 
done to Bhutto. The other three judges were of the view that Masood Mahmood's 
evidence was palpably false and the prosecution failed to prove the case against Bhutto 
and therefore it was not necessary for them to adjudicate on the question of the bias and 

Judiciary in Crisis? Copyright © 65 

prejudice displayed by the Court of trial. It is a pity they did not. It was understandable. 
They did not want to embarrass the judiciary. They understandably but unfortunately 
found that it was unnecessary in view of their order of acquittal. But they knew they were 
in the minority and bias was an issue in the appeal. They ought to have answered that 
issue which was answered by the majority of the Judges, on the question of bias and the 
unfairness of the trial. 

The transfer application was made by Bhutto on the 18th of December 1977 with a 
request that it be taken up during the Winter vacation. This application was dismissed on 
the 9th of January 1978, after it was heard in chambers and in camera. Thereafter Bhutto 
cancelled his instructions to his lawyers, and he was unrepresented. This hearing in 
Chambers surprised Bhutto who expected co be heard in open Court. The Court 
maintained that motions were heard in Chambers and Counsel supported them. The 
Counsel carne into chambers and Mr. Awan made his submissions without arguing the 
points already rejected in the earlier application. But the balance points were new points 
which the Court considered scandalous and insulting intended to lower the dignity of 
Court. His Counsel wanted to withdraw from the case which was not allowed but Bhutto 
was given an opportunity to add to the submissions of Counsel on the merits of his 
application. The Court in Chambers commented that Bhutto made a political speech 
which was to use their own words "absolutely irrelevant". The accused stated that if he 
was not allowed to state what he wanted to state he will not address the court any further. 
The petition for transfer was dismissed. Now this situation would never have arisen but 
for the lack of confidence on the part of the accused by reason of the Judicial behavior 
and the manifest hostility from the start of the Proceedings. This demoralised Bhutto. The 
public demonstration outside and the protest meetings in the midst of the floggings of the 
people made them feel that he was being treated unjustly and unfairly. Perhaps this was 
the factor that made him seek publicity. He perhaps wanted to reach the people. His 
application which he himself filed on the 1 8th of December was a desperate step. He may 
have thought with all his intelligence and experiences as a lawyer that he was facing a 
farcical trial. It may be he wanted to publicise the injustice he sincerely thought he was 
suffering at the hands of the Judges. But the ground was cut under his feet. The Court 
was sensitive to the allegations and complaints made against it and so they heard him in 
Chambers and dismissed the application without any publicity. In the first place matters 
need not have deteriorated so tar, in the second place even at some stage both Counsel for 
the defence and prosecution could have been called and told about the inappropriate steps 
taken by the accused to come to an open confrontation with the Bench. The complaints 
were far too many and far too serious and the Judges could not be Judges of their own 
cause. Really they were called upon to consider allegations against their own conduct. 
There were two remedies open to Bhutto to go to the Supreme Court by way of a writ of 
Prohibition or to bring these matters up in appeal in case there was a conviction. Surely 
all the averments in the application involved the Judges and how could they have been 
Judges of their own cause? Were they super-human to say "mea culpa"! Would they 
have ever made an order against themselves and say "justice must appear to have been 
done. We have failed to give that impression. We therefore transfer this case which is 
now reaching a conclusion to another Court for the trial to commence de novo in another 
Court?" Anyway this application was made "in extremis" and in utter despair without the 

Judiciary in Crisis? Copyright © 66 

slightest hope that they would obtain a transfer. It is a somewhat unique development in 
the history of criminal cases. Surely the Court need no have been put to this position, if 
they followed what the Chief Justice professed to Mark Tully in the famous interview 
over the BBC about the great Common Law Traditions and justice would be done for all 
the world to see. What happened after the 1 8th of December was a pathetic situation for 
any Court to be in and perhaps a fatal situation any accused to be in. 

Thereafter, the Court assembled in the Court room for recording the evidence of a 
prosecution witness. Bhutto's Counsel said he had no more questions to ask as his client 
had instructed him not to participate in the cross examination. Mr. Awan stated from the 
Bar that his client had withdrawn his power of Attorney. Bhutto through his Counsel 
placed on record a written statement drawn up by him that he did not want to defend 
himself in view of the conduct of the Court that day. The conduct referred to was perhaps 
the hearing of the petition in the secrecy of the Chambers, its dismissal and Bhutto being 
ordered not to indulge in irrelevant arguments and not to make a political speech. He was 
ordered to sit down and the petition was dismissed. Since the hearing was in Chambers it 
can only be surmised that Bhutto perhaps received some very rough treatment. 

It is a matter for serious consideration here whether the Court could hear such motions in 
Chambers or not when the law expects trials to be in public-The Court certainly in its 
discretion-can order "in camera" proceedings but in this case it is inevitable to form the 
view that the Court was fighting shy of the public and it is possible to say so with 
respectful regret. It is altogether unfortunate that one thing upon another led to this 
climax and crisis. Justice appeared to have come to a standstill. 

Then all requests to Counsel to appear for the accused at state expense failed. No Counsel 
could be foisted on an unwilling accused. So the Court directed the accused to conduct 
the case himself. The accused, however, refused to participate in the proceedings after the 
10th of January 1978. As we stated earlier this was a tragic situation for both the Court 
and accused. 

When the stage was reached to examine the accused under section 342 of the Code for 
purposes of obtaining his statement as provided by the law, the accused stated that since 
he was boycotting the proceedings he would not be offering any defence. He would 
however make a statement only (1) about the reasons why the present case was fabricated 
against him and (2) why he apprehended that he would not get a fair trial and any justice 
in Court. The accused's statement had been partly recorded on 24th January 1978 in open 

On the 25th January 1978, the Court noticed that a few of the supporters of Bhutto were 
found shouting and yelling in the corridor outside the Chief Justice's Chambers. Now the 
Court was faced with an additional reason to apprehend a disturbance in court and 
therefore it made its order that the trial will proceed "in camera" and the public will have 
no access. Even the Supreme Court when it expressed its views in its majority judgement 
referred to the justifiable "apprehension" of the High Court. The apprehension of the 
accused that he was not getting a fair trial far outweighs the apprehensions of the High 

Judiciary in Crisis? Copyright © 67 

Court Judges created by the judicial behavior of the presiding Judge. Did such 
apprehension of the Court arise not out of fear but out of self importance? It is really 
unfortunate that Judges who are expected to be fearless, who are clothed with authority to 
maintain law and order and who have all the law enforcing authorities at their command 
should entertain "apprehensions" and "reasons" for their "apprehensions". It is further 
unfortunate that they should have been placed in a position to he embarrassed before the 
public. All the "scandalous" allegations to undermine the dignity of Court were 
allegations that the accused dared to repeat in the face of the Court with which his 
Counsel did not dissociate himself. They were about events that according to him and his 
Counsel happened in open Court. Most of the allegations were not disputed. Counsel of 
standing were present when the incidents complained of took place in Court and all this 
was referred to in the Supreme Court. However unfortunate and ugly these incidents were, 
at least a good many of them, actually happened in open Court; complaints regarding 
undisputed facts are always not within the area of contempt however "scandalous" they 
may appear to be. If such incidents which were undisputed did take place, it is not the 
accused only who devalued the dignity of Court but the Court was also more than 
responsible for its own devaluation. Justice is not a cloistered virtue any longer. It can 
stand firm to the public gaze. It never runs away from the public. It is embarrassed by 
nothing. Justice needs no protection nor security from the people. But Judges may need 
them, no doubt. We may refer to a Judge of the Supreme Court in Sri Lanka who when he 
travelled outside his official business very often used the Public transport. He was 
advised by some of his friends on the Bench that it was a hazard to which he replied "It is 
not enough for a Judge to be fearless only on the Bench. He must be fearless on the 
streets and in the bus if anyone harms me, it only means I deserve it". This Judge is now 
retired and one can sometimes see him walking on the streets of Colombo in broad 
daylight like Diogenes the Greek Philosopher who walked the streets of Athens more 
than 1500 years ago! 

The public are certainly excluded in certain circumstances and that is in the interests of 
parties so that their intimate private and personal problems are not open to the public 
gaze and curiosity but hardly ever to protect the dignity of Court, or the vanity and 
sensitivity of Judges at the expense of an accused. The law of contempt does not reach 
out to punish a man with a legitimate grievance. For instance, a great criminal lawyer in 
Sri Lanka was provoked by a Supreme Court Judge presiding in the Assize Court unduly, 
harshly and severely examining the accused when he was giving evidence on his own 
behalf in a Jury Trial. While seated, he made an observation loud enough to be heard by 
the Jury and the Judge. "It is most unfair for a Judge to cross-examine the accused in this 
manner". The Judge was furious. He remarked "Mr. X, I don't want you to make loud 
comments". Mr. X ignored this remark and when the judge continued to harshly examine 
the accused Mr. X repeated his earlier remark whereat the Judge said "Mr. X, will you 
repeat what you said just now?" Mr. X got up put his chest forward, raised himself to his 
full stature (he was short in height) and loudly said "I repeat, with great respect, My Lord, 
what I have been saying more than once seated as I was at the Bar Table. The Judge is 
acting most improperly. He has taken the role of a prosecutor. He is cross-examining the 
accused even before the prosecutor. He is cross-examining. I repeat it and I shall repeat a 
hundred times, with great respect, My Lord". Counsel said everything and more than 

Judiciary in Crisis? Copyright © 68 

what he wanted to say but he spiced and punctuated all what he said with the traditional 
words "with great respect". The Court was silenced. No one would advocate or champion 
rudeness, insults and unseemly conduct either from the Bar or from the Bench. It prevents 
the smooth administration of justice. It does nobody any good. It harms both the 
individual and the institution. 

Even on the 28th of January, when Bhutto wanted to consult Counsel whether the 
proceedings could be held in camera the Court reminded him that he was given an 
opportunity to see his Counsel only on the question of his statutory statement and not on 
the question of in camera proceedings. It agreed to give the time allotted in the well 
known song "only 5 minutes more". All this time limitation to 5 minutes and the 
limitation to seeing Counsel only on one specific matter could have been if not graciously 
at least prudently avoided. How petty in a murder trial, anyway. Thereafter the situation 
further deteriorated. His incomplete statutory statement was then recorded. The accused 
re-iterated that he would confine his statement only to two issues (1) the reason for his 
lack of confidence in the fairness of the trial (2) The reason why this case has been 
fabricated against him. He said he was not going to call any defence. The question may 
be asked whether the two aforesaid issues were not material to the defence of the accused? 
Can it be said that the accused has no one to complain to? He could have gone to the 
Supreme Court by way of a Writ of Prohibition or reserved these points for appeal if he 
was convicted. It may be said that if he went in appeal to the Supreme Court, he could 
have been asked why he did not place these matters on record in the High Court. The 
High Court, however, was not going to hear his reasons for the lack of confidence in the 
fairness of the trial and find against themselves. 

It is unfortunate that the circumstances were not at all helpful for the Judges to adjudicate 
on the main case against Bhutto objectively and dispassionately as could be seen from 
their judgement. 

Bhutto in his statutory statement stated that he did not know Mien Abbas personally and 
never spoke to him. He had knowledge of him only in 1976 when Masood Mahmood told 
him that a very competent officer of his had suffered a heart attack and was hospitalised 
with the result that his own work had increased. 

It was in this total context that the proceedings in the High Court concluded. All the 
accused were found guilty and sentenced to death on the 18th of March 1978. It was the 
unanimous view that the prosecution had proved its case "to the hilt". Bhutto was held to 
be a "compulsive liar". They hardly examined the evidence of the prosecution witnesses 
and entertained no doubts about the testimony of Masood Mohamed which was in their 
view amply corroborated. The alleged bias of the Judges was revealed in the judgement. 
In the first place Bhutto was always referred to as the "the principal accused" which was 
a subject matter of complaint to the Supreme Court. By itself it cannot he said that it was 
due to their being prejudiced. They had, not incorrectly on the evidence of Masood 
Mahmood, the position that Bhutto held as Prime Minister and due to the episode in 
Parliament on the 3rd of June 1974 which according to the prosecution triggered off this 
conspiracy, called him the Principal accused. But at the end of their judgement, the High 

Judiciary in Crisis? Copyright © 


Court had gone out of its way to make gratuitous observations in paragraphs 610 to 616 
regarding the personal beliefs of the appellant and delivered a sermon as to the mode of 
conduct prescribed by Islam for a Muslim ruler. It had described him a Muslim only in 
name. It referred to his abuse of power and to his insane craving for self aggrandizement 
and perpetuation of his rule. It referred to him as an arch culprit and a "compulsive liar". 
It went on to say that "before a person seeks election to the office of the Chief Executive 
of Pakistan he should order his own life and before he under- takes to observe the 
principles of democracy, freedom, equality, tolerance and social justice he should 
inculcate these qualities himself. It went on to say "that a person who considers the 
Constitution and the law as a handmaid of his polity is neither qualified to be elected to 
the high office of the Prime Minister nor can ever be true to his oath". 

This judgement was most unfortunate. The judgement contained expressions of feelings 
on matters outside the case. It was unfortunate again that it ended on a note which would 
have been more appropriate for an Election Speech. These words were wasted as there 
was to be no election for eight years thereafter. The judges commented on counsel's 
responsibilities to court and lamented about the need for amendments in the Law of 

A comment may be made that no amount of amendments to the Law of Contempt will 
ever ensure a fair trail unless not counsel only but the Judges too realise their 
responsibilities towards institutions which stand for Law, Justice and the Rule of Law. 
Any extention to the Law of Contempt may put justice in peril. 

When the High Court made a finding that Bhutto was a "compulsive liar" - it was not on 
any testimony Bhutto gave in Court as a witness in the box. They made a finding that he 
was a "compulsive liar" on issues which Bhutto had with the presiding judge. In other 
words, they appear to have been judges of their own cause. 

The majority judgement in the Supreme Court ordered the deletion of six paragraphs in 
the judgement and observed that "they could safely be deleted without in any manner 
affecting its integrity, meaning and logical sequence". It is not a question of amputating 
these offending paragraphs "safely" without damaging the integrity, meaning and logical 
sequence of the judgement. What is disturbing is that these feelings were in the judicial 
minds of the High Court judge during the exercise of their judgement. For whose benefit 
or consolation was this order for deletion? What was the purpose? The written judgement 
as it stands today in an amputated form does not contain these effusions which reveal the 
feelings of the Judges and it does not give any relief to the roan who was sentenced to 
death by Judges who had all these irrelevant and prejudicial feelings against him. The 
mental processes that went on in the minds of the Judges could have played their part 
although they leave no longer any trace in the judgement after the deletions and 
amputations made by the Supreme Court. It passes all understanding that a judgement 
containing totally irrelevant and unfair observations wholly prejudicial and totally unfair 
to the accused should have been allowed not to stand after the skilful! surgery excising 
and amputating the offending portions when the findings and been poisoned with 
venomous judicial prejudice. To say the least with great respect the Supreme Court 

Judiciary in Crisis? Copyright © 


indulged in a harmful and meaningless exercise. Certainly it was not safe to allow the 
findings of the High Court to stand. The dissenting Judges would have done better if they 
had answered the issue of bias which again could have been answered dispassionately 
and objectively. Unfortunately they avoided the question of bias as they acquitted the 
accused. So, we have no collective finding of the Supreme Court on the following two 
important issues (1) Bias and the unfairness of the Trial (2) Political motivations and 

Judiciary in Crisis? Copyright O 71 


The first contact the Supreme Court had with the affairs of Bhutto after July 1977 was 
when Begum Nusrat Bhutto presented a Habeas Corpus application in the Supreme Court 
challenging the orders of the Military Authorities for the arrest of her husband as 
unconstitutional and illegal. This application was filed on the 20th of September 1977. It 
would be remembered that the judges of the Supreme Court had taken an oath of 
allegiance to the 1973 Constitution. The Government challenged the jurisdiction of the 
Supreme Court to question the said orders made by the Chief Martial Law Administrator. 
Two days after this application was filed General Zia announced that the office of the 
Chief Justice had fallen vacant as Yakub Ali Khan the last Chief Justice had retained the 
office after his normal retiring age. He was accordingly replaced by Anwarul Haq as 
Chief Justice. The very next day on the 23rd of September 1977, the new Chief Justice 
took his oath of office with the other Supreme Court Judges omitting the paragraph in the 
oath laid down in the 1973 Constitution whereby the Supreme Court Judges swore "to 
preserve, protect and defend the Constitution". From now on therefore they ceased to 
function as Constitutional Judges and were absolved from keeping faith to the oath they 
had earlier taken, (vide Keesing' s Contemporary Archives). 

The question whether Anwarul Hag was constitutionally appointed as Chief Justice in 
terms of the Constitution arises and the answer has to be perhaps in the negative. This 
question and answer applies to the other Judges as well. In this respect their decision in 
the Begum Nusrat Bhutto's case delivered on the 10th of November was an adjudication 
which involved their own interests with regard to the validity of their holding office. In 
any case if they accepted the view that the 1973 Constitution was only "in abeyance" 
why were they made to desert the Constitution in the hour of its peril by their having to 
abandon their allegiance to the earlier oath taken "to protect, preserve and defend the 
Constitution"? Another interesting question for the jurists to consider is, what would have 
been the position, if a Writ of Quo warranto application was made challenging the 
authority of the Judges of the Supreme Court to hold office and function as Judges of the 
highest court and if this application was made soon after the new Chief Justice was 
ap-pointed and all the Judges took their new oath omitting the vital part of their old oath. 
Was such an application made before the hearing of the application of Nusrat Bhutto? If 
not, it is unfortunate that today we have not been educated by the judgement of the 
Supreme Court on this very important issue, i.e. the constitutionality and the authority of 
the Supreme Court. But who was to decide the Quo warranto application - the Judges 
themselves were in issue on the legality and constitutionality of their tenure of office? 
Jurists perhaps will say quite rightly someday that the finding in the Begum Nusrat case 
was made by the Judges who judged their own cause too! 

Judiciary in Crisis? Copyright © 72 

On the 22nd of October 1977, Bhutto presented himself in the Supreme Court and made a 
three hour speech supporting the petition for his release. On the 10th of November 1977 
the Supreme Court dismissed the Application for Bhutto's release and rejected the 
submissions on the unconstitutionality of his arrest and detention. It held that the 
imposition of Martial Law although an extra constitutional step was validated by the 
"doctrine of necessity" as the Constitutional and moral authority of Bhutto's Government 
had completely broken down. In their order the Court took note of General Zia's pledge 
that elections would be held as soon as possible after the trial and that this pledge will be 
redeemed. The Supreme Court takes credit for waiting patiently for more than 8 years for 
this pledge to be redeemed and on "the doctrine of necessity" it has carried on for so long 
owing no allegiance to any Constitution and having broken its own pledge to keep faith 
to the 1973 Constitution. Was it a logical extension of the Doctrine of Necessity? Was it 
a perpetual ever lasting necessity? The jurists can answer this question. Was the 
Constitution in abeyance or in Bhutto's words preserved like pharoah' s mummy! 

It is in this set up, that the trial of Bhutto was taking place in the High Court where of 
course the traditional laws survived. The Criminal Law, the law of Evidence and the 
Criminal Procedure Code were in no way affected in any manner whatsoever. Judicial 
tradition, the principles of justice, and principles of fair trial were not interfered with. So 
that there was no reason for the Judges of the High Court to feel that there was any 
compulsion on them to depart from the normal judicial traditions. Did the High Court 
give the appearance that there was a "fair trial" before them? On the other hand the 
Supreme Court while 3 Judges were silent on the matter, held that there was a fair trial 
and there was no bias and Bhutto received substantial justice. We may mention that 
Bhutto made an application about the constitution of the High Court which was to hear 
his case, and among other grounds that by the Acting Chief Justice being appointed the 
Chief Election Commissioner he had ceased to hold the office of Acting Chief Justice and 
that there were other reasons for personal bias. 

The Supreme Court directed that this application be made in the High Court. This was 
before the 11th of October 1977 when the Supreme Court had still to hear the much 
larger question of the legality and constitutionality of the orders of the Chief Martial Law 
Administrator. The baby passed to the High Court was an unwanted one and a source of 
embarrassment to the Court. 

After the conviction and sentence on the 18th of March 1978, Bhutto appealed to the 
Supreme Court on the 25th of March 1978. Outside the court we know what was going 
on in the country - demonstrations, protests, flogging, sealing of printing presses, 
clemency appeals from foreign countries (vide Chapter III) and elections being postponed. 
The distribution of an edition of Musawat had been stopped after publication of a letter of 
Bhutto to Bakthtiar describing the military authorities as "dirty, miserable and stinking 
men". All copies of the Musawet containing reports of Bhutto's appeal to the Supreme 
Court were seized on the 27th of March 1978. On the 1st of April 1978 while there was 
turmoil in the country, the Supreme Court rejected an application of Bhutto for relief 
from condition in his cell in Death Row, which his counsel the former Attorney General 

Judiciary in Crisis? Copyright © 73 

of Pakistan described as horrible and insanitary. The hearing of the appeal was fixed for 
the 6th of May and the application for 2 months time was refused. However, the appeal 
was later postponed for the 20th of May, 1978. 

In the meantime, Mr. Bhutto in a letter to the Supreme Court appealed to the Chief 
Justice Anwarul Hag to withdraw from the case on the grounds that he had publicly 
criticised Bhutto's Government after it fell, that he had referred to General Zia as "a 
National Saviour", that he had for many years closely associated with the Chief Justice of 
the Lahore High Court who had found him guilty and also for the reason that Anwarul 
Haq acting as head of State during Mr. Chaudhury's absence abroad had temporarily 
merged the military executive and the judiciary. Among these grounds, the first and third 
grounds were quite substantial grounds. Anyway this application was rejected by the 
Chief Justice as "unfounded and based on a misunderstanding". The Chief Justice said 
that he was going to appoint a full Bench of 9 Judges to hear the appeal and he will be 
only one of the 9 Judges and his views would be the views only of one of the 9. It must 
be mentioned, however, that the Chief Justice and other Judges gave a very good hearing 
to the appellant and there could be no allegation against their judicial behavior. Bhutto 
and his Counsel were given a very patient hearing. The hearing of the appeal continued 
from the 20th of May 1978 to the 23rd of December 1978. The judgements were 
delivered on the 6th of February 1979. The Judges were divided 4:3 and Bhutto's appeal 
was dismissed. 

Man proposes but God disposes and the most unexpected happened twice to reduce the 
number of Judges hearing the appeal to 7. Quaisser Khan J. retired from the Court after 
he reached the age of retirement on 30-7-78 and another Judge Waheeduddin J. was 
incapacitated from functioning on the Bench having suffered a cerebro-vascular stroke on 
the 20th of November, 1978. There was an adjournment for 3 weeks and since he had not 
fully recovered, the hearing was resumed before 7 Judges. At one time there were 8 
Judges and what would have happened if they were divided 4:4? Even that chance was 
denied to Bhutto and the other accused Mian Abbas. The Chief Justice Anwarul Haq 
presiding wrote the judgement dismissing Bhutto's appeal and confirming the conviction 
and death sentence. Mohammed Akram J. and the 2 other judges of the Supreme Court 
agreed with the judgement of the Chief Justice. They were Karam Elahee Chauhan and 
Nasim Hassan Shah J. 

Three Judges on the other hand allowed the appeal of Bhutto and the 2nd accused Main 
Abbas. They were Dorab Patel J., Mohammed Haleem J. and Safder Shah J. 

All the Judges dismissed the appeals of the other accused. The Chief Justice Anwarul 
Haq' s judgement was the only judgement written with which the 3 other Judges agreed. 
On the other hand all three Judges who acquitted Bhutto wrote separate judgements. Two 
of them wrote separate judgements. Two of them wrote lenghty judgements. The 
judgement of Haleem J. was pointed and brief. It may be of interest to note that Haleem J. 
is today the Chief Justice of Pakistan and it is a matter for appreciation that his acquitting 
Bhutto never stood in the way of his being appointed as Chief Justice later. 

Judiciary in Crisis? Copyright © 74 

Whether one agrees with the final minority judgement or riot, there is no doubt that the 3 
judges who wrote the minority dissenting judgements were fearless and independent. The 
unfortunate feature in the final outcome is that one judge made all the difference and this 
situation was never anticipated. It was a stange quirk of fate indeed that brought about 
this narrow decision. 

It is not out of place to recall the events that were taking place in the country outside 
Court. The hearing of the case affected the politics outside and the politics outside had an 
indirect effect on the accused and Counsel. It is to the credit of the Court, however, that a 
perfectly cool atmosphere was maintained throughout the hearing with all the proprieties 
observed by the Bench, the Bar and the' accused as it ought always to be. The tensions 
were removed except the oppressive feeling on the part of the accused that the hearing of 
the appeal was during a regime which was very hostile to him and over which the Court 
had no control. Bhutto expected justice from this Court and it may be said till the 
judgements were delivered, many expected Bhutto to be released. But it was not to be. 

Anwarul Haq C.J. examined the allegations made about the bias the High Court displayed 
at the trial and the irregularities but stated that the High Court had in no way denied the 
appellant of substantial justice and he would not say that justice was not done. He, 
however, deleted 6 paragraphs in the judgement which referred to extraneous matters 
which were no part of the case. He accepted Masood Mahmood's testimony which he 
said was amply corroborated by circumstantial evidence. Mr. Bhutto, he said had a very 
strong motive to do away with Mr. Kasuri because of their strong political differences. It 
was his view that the prosecution had fully succeeded in establishing its case. 

Safder Shah J. had serious doubts and did not accept the evidence of Masood Mahmood. 
He said that there were 1 5 attacks on Kasuri over a period of nearly 4 years and in none 
of the complaints he made to the Police or in the privilege motions he moved in 
Parliament did he accuse Bhutto as an instigator. Even after the attempt to attack him in 
Islamabad in August 1974, he did not mention Bhutto. He thereafter made efforts to 
regain the confidence of Bhutto. He held that there was no corroboration of the 
Approver's evidence. He was not at all satisfied with the Approver's evidence which he 

Dorab Patel J. was also critical of the credibility of the approver Masood Mahmood's 
evidence. He disbelieved him and found no corroboration. Haleem J. (now the Chief 
Justice of Pakistan) observed dealing with the approver's evidence "an overall 
examination of his evidence has led me to conclude that it is not of the quality on which 
reliance can be placed. The High Court has construed the substantial omissions and 
improvements in his evidence as details or omissions of matters which have been brought 
on record by the Public Prosecutor putting specific questions. In my view these omissions 
and improvements vitally affect his truthfulness and, therefore, in resolving it in favour of 

the prosecution the High Court has given an illusory value to his evidence I am firmly 

of the view that his evidence is unnatural and thereby lacks its guarantee to inspire 
confidence... .Such being the state of evidence, it does not appeal to wisdom and I would 
therefore disbelieve him...." He held that the corroborative evidence was inconclusive. 

Judiciary in Crisis? Copyright © 75 

Four learned Judges therefore held views about the prosecution case diametrically 
opposed to the views of 3 learned Judges, on a pure question of fact. It does not disturb 
one's conscience when Judges disagree like this on a question of law. But when they so 
disagree on a question of fact which involves the question of life and death for a human 
being it is a matter of grave concern for other human beings. Is there something wrong in 
the system where 4 learned judges held one view that they believed Masood Mahmood 
and 3 equally learned Judges held that they could not believe him. It naturally leads to the 
next question what is truth and what is falsehood? How can one find whether a man is 
speaking the truth or speaking a falsehood. Judges do not have a power of divination nor 
are they crystal gazers. They are human and remain human despite all their learning. 
Learning gives them all the intellectual equipment to decide questions of law and 
sometimes even on questions of law there are sharp conflicts of opinion. But questions of 
law remain for a rational and intellectual scrutiny, and sometimes a minority dissent has 
been later found to be correct. It has been found that sometimes majority judgements had 
gone wrong in legal reasoning and that the minority dissents were right. Judicial 
precedents have in a few instances perpetuated utterly wrong decisions on The altar of the 
law of 'Stare decisis '. That is on matters of law. 

On a question of fact however, the law and the principles of justice give a guide line to 
Judges. Very often there are counsel appearing for the contending parties. Judges listen to 
them. Judges have no brief to hold for anyone except for themselves in the tribunal of 
their own conscience. They are in a superior position to either Counsel appearing before 
them because they are at an advantage to see the totality and listen limine points of view. 
They will examine the submissions and for good reason accept some and for some good 
reasons reject the others. How is it then that Judges of ability, honesty and experience 
came to hold different views on the credibility of one witness? According to four of them, 
the evidence of the witness was acceptable without any reasonable doubt. 

According to the other three, it was not only unacceptable but his testimony was 
unnatural and full of infirmities and it did not survive their examination. The people had 
to accept the verdict of the majority and the fatal consequences flowed. That does not 
mean that the people cannot examine the reasons for the verdict. The consequences of 
course must inevitably flow even from a wrong verdict. That is the rule of law. The 
question lies open for the learned Jurists to examine how the rule of law operates when 
there is no rule of the Constitution but only a rule of men. These questions are riot within 
the scope and objective of this book. The facts are before the people and there is no rule 
nor any power on earth which prevents there from examining these verdicts and the 
reasons. In other words when Judges get into conflict in their views, the people for all the 
more reason can judge the judges. It is nice if the people's judgement and evaluation of 
Judges stand the test of the traditional values of justice and fairplay. There were no 
incidents in the Supreme Court and Bhutto was given a full opportunity to address the 
Supreme Court which he did for 4 days from thel8th to the 21st of December 1978. The 
hearing of the appeal concluded on the 23rd of December, 1978. Bhutto's Counsel Mr. 
Yahya Bakhtiar, the former Attorney General, had already appeared for him and had 
argued his appeal, it must be mentioned that on all four days he addressed the court, 

Judiciary in Crisis? Copyright © 76 

Bhutto expressed his full confidence in this Court and also his gratitude for its gesture in 
having allowed him to address the court after his Counsel had fully argued his appeal. 

It is quite evident that Bhutto found his appearance in the Supreme Court a refreshing 
change from his experience in the High Court. 

The events outside the Court were settling down in the direction of no return to elections. 
On the resignation of President Chaudhury, General Zia had been sworn as President on 
the 14th of August 1978. Pakistan was 'moving' towards denationalization of Industries, 
setting up of foreign Banks and the return to the old order. Everyone knew where he 
stood and this led to a sort of stability in the country. 

While Bhutto's appeal was being heard, White Papers were being published and 
distributed both in Pakistan and other countries abroad about all the alleged misdeeds, 
corruption, etc. during Bhutto's regime with special reference to how he used the Federal 
Security Forces as his 'personal Gestapo' and also his interference with the freedom of 
the Press and the independence of the Judiciary. Bhutto replied in a statement of 80,000 
words denying the allegations against him in the White Papers and said "we did not flog 
journalists nor did we steal the printing presses of Newspapers". The reference to the 
Federal Security Force and the Gestapo when the appeal was pending was a clear 
contempt of Court. It could have prejudiced the minds of the judges. No one can say how 
far it affected their judicial minds - dealing with Government publishers for contempt 
was out of the question in the set up. On the other hand the Supreme Court graciously 
allowed Bhutto to let off his steam and so there were no tensions. Bhutto applied to be 
allowed to say his piece after his Counsel had concluded his submissions on his behalf. 
The Supreme Court generously allowed this application. Bhutto was satisfied and 
expressed his confidence in the Court. He was allowed his say and he spoke for 12 hours. 
He referred to the political motivation for this case to be fabricated against him. 
Hindsight it could very well appear that this was no more than a sort of allocutus afforded 
in some legal systems to an accused before he is sentenced to death. The Court gives him 
the last say before the sentence of death is pronounced and this communication he is told 
will be communicated to the authorities concerned. He is asked why sentence of death 
should not be carried out. But unfortunately Bhutto was given this opportunity to speak 
out in open court as though what he said was to be among the matters the judges were 
going to consider and he made use of this opportunity to attack his political enemies and 
the political motivations. One way of looking at this permitted speech is that it totally 
ruined any chances of a commutation of the death sentence, thereafter. Bhutto on the 
other hand wanted to speak out his mind and expected the judges to view the prosecution 
case in the light of his submissions and his statement. Of course he could not be cross- 
examined on his speech. His speech was an "extra" to the submissions made by his 
Counsel. Bhutto wanted this opportunity to be given to him under section 342 of the 
Criminal Procedure Code as such an opportunity was in effect denied to him in the trial 
Court. When the opportunity was given to him by the Supreme Court, did they accept the 
position that a mandatory provision to provide him with this opportunity was denied to 
him? It is only on this basis that the application was made and could have been allowed. 
One is reminded of doctors, when they find they have done their best and the patient has 

Judiciary in Crisis? Copyright © 77 

no chance to recover, telling the patient, "You can eat and drink whatever you like". Was 
it a matter of judicial diplomacy to have allowed him his say? - to say whatever he liked? 
Did it gain any publicity at all - that is the question. There was no publicity given to his 

The answer for all this is found in the judgement of Anwarul Haq C.J., "Although in the 
grounds of appeal as well as in the oral submissions made at the Bar, considerable 
emphasis has been laid on the point that the present case was politically motivated in the 
sense that there was an international conspiracy to remove the appellant from power and 
to eliminate him both politically and physically it is clear that these matters are 
extraneous to the record of the case and to its judicial determination. The fate of the 
present appeal must depend not on the motive of those who re-opened the investigation of 
the case on the promulgation of Martial Law on 5th of July 1977, but on the strength or 
weakness of the evidence adduced in support of the allegations made by Ahamed Raza 
Kasuri in the First Information Report made by him as long ago as the 1 1th of November 
1974 minutes after his father had breathed his last owing to injuries sustained during the 
attack on the complainant's car. If the requisite evidence satisfying the legal and judicial 
standards applicable in criminal trials of the present kind, is available on the record to 
prove the guilt of the appellant beyond reasonable doubt then the duty of the Court is 
clear, irrespective of the political consideration which might have led to the overthrow of 
the appellant's government in July 1977 and the re-opening of the present case thereafter. 
The converse is equally true. If sufficient evidence is not available to sustain the 
conviction recorded against the appellant, then they must be set aside regardless of any 
political consideration. On this view of the matter we did not think it necessary to go into 
details of the alleged international conspiracy alluded to by Mr. Yahya Bakhtiar". 
Although the above submissions referred to the submissions made from the Bar by 
Counsel, Mr. Bhutto's speech in a big way referred to the political motivations for a case 
to be framed against him. So that the above observations refer to Mr. Bhutto's speech as 
well which spread over 12 hours for 4 days. 

Bhutto was thankful to the Court and expressed his confidence in the Court on each one 
of these four days. It would appear now that Bhutto was justified in expressing his 
gratitude for the Court giving him an opportunity to make a long speech but he was 
misreading the situation if he thought the Court was going to consider and take into 
account anything of what he said in his long speech, if it referred to politics. It was only 
the swan song of Zulfikar Ali Bhutto which was so graciously allowed to him by the 
Court. In no way was it relevant to his case, they held. 

It is rather difficult to understand what the Judges meant when they said that the converse 
applies that if there is no sufficient evidence to sustain the conviction, it must be set aside 
regardless of political considerations. Is there any Judge worthy of his office who will 
allow a conviction to stand, on insufficient evidence because of political considerations? 
Is there any Judge imaginable who would ever say "No doubt, the evidence is insufficient 
but we must pay due regard to political considerations and therefore we affirm the 
conviction". There are the three Judges of this Court who regardless of political 
considerations set aside the conviction because of the insufficiency of evidence, as they 

Judiciary in Crisis? Copyright © 78 

held. There are also four Judges who thought that the same evidence was sufficient to 
sustain the conviction and so they did not set aside the conviction regardless of political 
considerations. The speech of Bhutto was a sort of allocutus to be considered by posterity. 
But then, was this case free of politics? Politics swept away the 1973 Constitution. 
Politics said that the elections where the chief contending party was the PPP will be held 
after this case? Politics appointed the Chief Justice and politics made the Judges take a 
new oath with the allegiance to the Constitution. Politics made the country rock after the 
1977 March elections which were alleged to have been rigged. Bhutto's position was that 
he had no fair trial. 

The presiding Judge in the High Court Mr. Justice Mustaq Hussain had a personal bias 
against him owing to his having been superseded for the office of Chief Justice of the 
Lahore High Court, and also because he, Bhutto presided in the Central Executive 
Committee of the PPP which condemned Justice Mustaq Hussain for certain statements 
about the elections made by him in his capacity as Chief Election Commissioner in 
August 1 977 after the Promulgation of Martial Law. Bhutto pointed out the intemperate 
unjudicial language used in the judgement of the High Court about his being a Muslim 
only in name ignoring his contribution to Islam. He had solved the age old Quadiani 
problem. He had convened the Islamic Summit at Lahore and was elected as Chairman 
on the proposal of the late King Faisal of Saudi Arabia. He had declared Friday and not 
Sunday as a closed holiday and changed the name of Pakistan Red Cross to Red Crescent. 
He was responsible for the adoption of the 1973 Constitution. He submitted that the High 
Court Judges were too prejudiced to give him credit for his achievements and without any 
justifications called him a Muslim only in name. The tone of the judgement no doubt 
further proved the prejudice and bias on the part of the Judges of the High Court against 
Bhutto. In any case to put it at the lowest the accused had every reason and justification 
to think that he had not been given a fair trial due to politics. The Supreme Court apart 
from amputating these observations from the judgement of the High Court did not go 
further and at least order a retrial if they could have in the totality of the complaints made 
about the various incidents that happened in the High Court. Bhutto also submitted that 
he was politically framed. The Supreme Court did not treat the political consideration as 
relevant but one would have expected them to have examined the evidence of the 
Principal approver Masood Mahmood in the light of the political events that led to the 
fall of the Bhutto Government and the undoubted anxiety of the Martial Law Authorities 
to pursue Bhutto. 

The most important man who would have been a threat to the reactionary forces in 
Pakistan if he had come back to power undoubtedly was Bhutto, and these political 
considerations could not have been rejected out of hand as irrelevant, in evaluating the 
investigation and the approver's evidence implicating Bhutto. We cannot be sure that the 
4 convicting Judges of the Supreme Court would have come to the same finding had they 
examined the political motivation to frame Bhutto as was alleged by the defence. 

It is difficult to say that the trial of Bhutto in the High Court and his appeal would have 
gone necessarily against him if he had a fair trial and if the evidence was more closely 
examined by the Judges who found him guilty without closing and shutting their minds 

Judiciary in Crisis? Copyright © 


from the relevant political considerations. As stated earlier it was difficult to write about 
the Bhutto trial in vacuo without setting it in the political context. When the whole case 
was bristling with politics were the Judges adopting a holier than thou attitude by 
eschewing all politics? Was it the rule of relevance or the difficulty to deal with the 
politics which was the factor that determined their avoiding all political considerations? 

The Judges failed to realise, that they need not have agreed with Bhutto's politics when 
they considered the possible political motivations as far as the investigation and the 
institution of the case against Bhutto was concerned. Should the exercise of the 
Government functionaries be necessarily attributed to the Head of the Government on the 
evidence of an accomplice? When the political motivations were urged by the defence, it 
was not a case of Judges having to involve themselves in politics. They can consider 
politics as a human factor in evaluating the conduct, credibility and motive of witnesses 
and investigators. In doing so they need not evaluate the relative merits of the Bhutto 
regime and the Martial Law regime. Their attention is directed to psychological and 
human factors in relation to human conduct which leads to fear, compulsion, self interest 
and survival. 

The Supreme Court confirmed the conviction and the death sentence of Bhutto on the 6th 
of February 1979 by a majority Judgement of 4 to 3. 

On the 24th of February 1979 the Supreme Court began hearing a petition presented by 
Bhutto's Counsel for a review of its Judgement on his appeal with a request that the two 
of the nine Judges who had withdrawn from the case be recalled. Mr. Bakhtiar submitted 
that this was the first time that the Supreme Court had failed to agree on a death sentence 
and the guilt of the accused. The Chief Justice displayed his impatience and anger and 
shouted at Mr. Bakhtiar to show one single new point of law which had not been argued 

The Supreme Court unanimously rejected the petition on the 24th of March and observed 
that it was for the Executive authorities to review the sentence of death in the exercise of 
their prerogative of mercy. Mr. Justice Safder Shah told a Press conference on the 28th of 
March that the Supreme Court implicitly recommended in their order that the death 
sentence should be commuted. 

It is some interest to know that in Sri Lanka in a Jury Trial before 7 jurors a 4:3 verdict is 
an unacceptable verdict. 

Judiciary in Crisis? Copyright © 



With regard to petitions of mercy, Bhutto had persistently frowned on any request for 
mercy and he had strictly forbidden his family and friends to make any such request. 
However, Mr. Pirzada (Finance Minister in Mr. Bhutto's Government) and two sisters of 
Mr. Bhutto petitioned President Zia for mercy on 31st March 1979. 

In the meantime, there were appeals for clemency from all over the world. 

A very humane step was taken by Malik Ghulam Jilani who presented a petition based on 
a very relevant constitutional point which was ably and fearlessly supported by a young 
Barrister Mr. Aitzaz Ahsan before Justice Shafi-ur-Rahman in the High Court of Lahore 
(PLJ 180 (Lahore) 166). It was a writ petition which stated that General Zia Ul-Haq as 
the Chief Martial Law Administrator cannot deal with any mercy Petition as he is only a 
de facto and not a de jure President. In this state of affairs, the execution of the sentence 
of death could not be carried out by the Jail authorities. The High Court, however, held 
that what the petitioner was intending to achieve is questioning the authority of the 
present incumbent of the office of President which he must first do by a writ of quo 
warranto, and he cannot achieve this by collaterally challenging the authority. The 
petition was dismissed on 17th March 1979. While dismissing the petition, the Judge 
observed that as a matter of equity, the petitioner was seeking to perpetuate the agony of 
the convict by keeping in abeyance the exercise of mercy power for one does not know 
nor has it been made clear as to when a de jure President of his liking is to come into 
existence. This is a strange aspect of law and equity indeed! 

There was another inter Court appeal No. 76 of 1979 decided on the 3rd of April 1979. 
(PLC, 1979 Lahore 564)In this petition the point was taken that the Chief Martial Law 
Administrator cannot deal with a mercy petition as he was not a de jure President. Mr. 
Aitzaz Ahsan supported the petition and again ably argued the matter challenging the 
Validity of the President's order No: 13 of 1978 whereunder General Zia-Ul-Haq was 
holding the office of President. He also argued that this constitutional question could be 
argued collaterally. The court held that the Supreme Court had validated the Martial Law 
Regime on the doctrine of necessity and also the authority of the Chief Martial Law 
Administrator in the Begum Nusrat Bhutto case in 1977. This decision was made for the 
good of the people "so as to achieve one of the objects of the Martial law, i.e. holding 
General Election as early as possible". Flowing from the decision of the Supreme Court, 
the President's order No: 13 of 78 was valid. It was their view that on account of State 
necessity, the President of Pakistan and the Superior Courts continue to function under 
the Constitution subject to the condition that certain parts thereof have been held "in 
abeyance". It must be kept in mind however, that the Judges of the Supreme Court 
omitted their oath of allegiance to the Constitution in their new oath whereby they had 

Judiciary in Crisis? Copyright O 81 

sworn "to preserve, protect and defend the Constitution". This appeal petition was also 
dismissed limine already on the 3rd of April 1979. Mr. Aitzaz Ahsan requested for grant 
of a certificate to file an appeal before the Supreme Court which was rejected. Perhaps 
this matter could have still gone up next day to the Supreme Court but it was not to be. 

Before such an application could have been made to the Supreme Court Bhutto had been 
executed at 2 a.m. in the early hours before dawn of the following day the 4th of April 
1979 at the Rawalpindi prison. His body was flown to Larkana in Sind, and buried. The 
sentence was carried out 2 hours before the time provided by the prison regulations. The 
customary 48 hours between the rejection of the mercy petition and the execution was not 
allowed. The wife and daughter were allowed to see him on the 3rd April 1979. They 
were not allowed, however, to attend the funeral. The Public announcement was made 
about the execution 9 hours later on 4th of April 1979. 

None of he clemency appeals succeeded and Bhutto had to fulfill what was destined for 

There were many clemency appeals that had been made on his behalf from the time 
sentence of death was passed by the High Court on the 18th of March 1978. Even before 
his appeal was heard by the Supreme Court, appeals were sent to General Zia by the 
Governments of many Moslem countries including Egypt, Libya, Tunisia, Algeria, 
Turkey, Iran, Yemen, the United Arab Emirates, Oman and Qatar. Delegations from 
Libya, Algeria and the United Arab Emirates visited Pakistan to intercede for him. 
Colonel Gaddafi, the Libyan leader was reported to have warned General Zia that he was 
prepared to go personally to Pakistan to rescue his friend and "brother in Islam" Mr. 
Bhutto. The Turkish Prime Minister Mr. Ecevit said that Turkey was willing to offer him 
political asylum it this would secure his pardon. Appeals were also sent to General Zia by 
the Governments of a number of non-Moslem Countries including Romania, Greece and 
Australia and by the U.N. Secretary General Kurt Waldheim. Although the British 
Government did not make any public statement, the foreign Secretary Dr. Owen raised 
the matter at a meeting with Mr. Agha Shahi, General Zia's adviser on foreign affairs in 
London on March 20th. The Chinese Ambassador was reported on April 6th 1978 to have 
had two meetings with General Zia and one with President Chaudhury at which he had 
pleaded for Mr. Bhutto's life. The Standing Committee of Pakistan Organizations in the 
United Kingdom said that justice had not been seen to be done in Mr. Bhutto's case and it 
would ask the Pakistan Government to show the evidence to a team of English Lawyers. 
Protest demonstrations by Pakistanis took place outside the Pakistani Embassy in London 
on March 21st and 24th. There were much feelings among the Moslems in Indian 
Kashmir and there were protest demonstrations and protests on a very large scale. But all 
this was while Bhutto's appeal was pending. General Zia had an effective answer - "let 
the law take its course, and all must be treated equally before the law". 

After the rejection of the appeal in the Supreme Court there were many more clemency 
appeals and demonstrations. To quote again from Keesing's Contemporary Archives 
"following the rejection of Mr. Bhutto's appeal, ex President Chaudhury visited 
Rawalpindi on February 1 1th to plead with the President Zia for his life but was refused 

Judiciary in Crisis? Copyright © 82 

an interview. He therefore delivered a letter for the President, in which he said 
Implementation of the death sentence is a matter of grave concern not only for Pakistan 
but for the International community as well. Naturally it threatens the independence, 
integrity and sovereignty of the motherland and internationally it is bound to aggravate 
beyond the point of no return instability in an area of extreme strategic importance to the 
economy and politics of the whole world. He emphasised that the fact that 3 judges had 
acquitted Mr. Bhutto must raise grave misgivings and referred to the unfortunate 
coincidence that the four judges who had found against him all came from the Punjab 
while the three judges who had found in his favour all came from the other provinces. 
Press and Radio reports of the letter were banned by the military regime but it was 
broadcast by the B.B.C.'s Urdu languages service. Lt. Col. Tikka Khan the former Army 
Chief of Staff warned that the hanging of the Bhutto would lead to the disintegration of 

Clemency appeals came from many international personalities including Pope John Paul 
II, the UN Secretary-General, President Carter, President Brezhnev, President Giscard d' 
Estaing of France, King of Spain, President Tito, the Chinese Prime Minister and the 
Prime Ministers of the United Kingdom, West Germany, Denmark, Norway, Sweden and 
Vietnam. The Indian Government officially expressed no opinion though the Minister for 
External Affairs Mr. Vajpayee said the "hanging of a political opponent was undesirable". 
4,000 Pakistanis led by the two sons of Bhutto staged a protest demonstration in London 
and so did the Pakistan students in Moscow. The P.L.O. appealed, so did the 
Governments of the Arab countries. The Turkish Prime Minister made his second appeal 
offering Bhutto asylum. General Zia said that if the Supreme Court upheld the death 
sentence he would not exercise his prerogative of mercy. General Zia maintained that all 
are equal before the law, the law must take its course and that during the previous 18 
months nearly 400 people had been hanged after he had rejected their petitions of mercy". 
(Keesing's Contemporary Archives). There is no record that Sri Lanka lodged any appeal 
nor did Desai's Government. 

It may be mentioned that Bhutto was hanged before the other four condemned men in the 
case. A point was made that three of them had their appeals dismissed by all the seven 
judges of the Supreme Court, yet Bhutto was the first to be hanged. 

All these clemency appeals were ill-timed before Bhutto's appeal was dismissed and they 
were really asking for Bhutto to be treated as a special case. There was no valid argument 
against the rejoinder of General Zia that all are equal before the law. 

It was understandable if they had appealed on a principle that death sentences should be 
abolished in which case, the clemency appeals should have covered the other four 
condemned men. Even after the appeals were dismissed, with all the demonstrations, 
protests and criticisms, General Zia-Ul-Haq continued quite rightly to maintain that he 
had to accept the decisions of the judges and no one was above the law. In his view, the 
law had taken its course and no one could be given special treatment. 

Judiciary in Crisis? Copyright © 83 

Ultimately, it is the judiciary and judicial system alone that has to take the full 
responsibility for Bhutto's conviction and execution. The question whether their 
judgements were right or wrong remains for the people to answer. Of course the only 
answer to the question whether Bhutto had a fair trial has to be an emphatic "No". 

General Zia in an interview on April 5th declared "I have tried to show that nobody 
whether high or low is above the law" No one can quarrel with him for holding that 

The civilian politicians dissociated themselves from the executive. The execution was 
condemned throughout the world, and there were messages of sympathy from many 
world leaders. 

There was the report of the Daily Telegraph correspondent who was present at the 
graveside of Mr. Bhutto on the 40th day after his burial on the 1 1th of May when 100,000 
people from all over Pakistan gathered, "I have never before, on any reporting 
assignment, known such strong emotion, such an electric atmosphere - we were borne to 
the graveside on a veritable sea of chanting, mourning humanity, a tidal wave of emotion 
and of condemnation for the men who hanged Mr. Bhutto". He also commented that 
some of the mourners shouted Sindhi Desh (Free Sind) - a demand that Sind should 
secede from Pakistan. 

Judiciary in Crisis? Copyright © 84 


The former Attorney General of the United States, Mr. Ramsay Clark visited Pakistan 
during the trial and he later published his assessment of it. He questioned why two judges 
of the High Court, who had sometime earlier granted the Habeas corpus petition were 
excluded from the Trial Bench and why on the other hand the Chief Justice had included 
himself despite his dispute with Bhutto when he was superseded. Mr. Ramsay found this 
allegation against Bhutto and the evidence of the Chief witness to be "more than suspect 
and the Chief Justice's prejudice against Bhutto spread throughout the 145 page decision". 

The London Times carried an editorial titled "He would become a Martyr". It is said that 
the trial was a political trial in reality. It observed that not every Court would have found 
that evidence as conclusive and incontrovertible as the Punjab High Court did but that 
was properly a matter for the Supreme Court to determine. It refrained from commenting 
on the merits of the case but made the observation that had Mr. Bhutto been acquitted he 
would have emerged a more dangerous political opponent than ever. Everyone was well 
aware therefore that a verdict of guilty was what the new regime wanted and meanwhile 
the regime has shown itself ready to deal firmly and ruthlessly with political opposition in 
any form. The Court was thus deliberating under heavy political pressure. "It may he that 
it did not in fact affect its conclusions but inevitably it will affect the willingness of Mr. 
Bhutto' s supporters to accept these conclusions", it said. A local newspaper quoted the 
following report from Bonn: 

The Frankfurter Allegemeire Zeitung (conservative) commenting on the death sentence 
passed in Pakistan on former Prime Minister Zulfikar Ali Bhutto said in an editorial, 
"How is it then possible after the overthrow of Prime Minister Bhutto his greatest 
political rival Pathan leader Wali Khan found guilty by a Pakistani court of high treason 
and sentenced to be lengthy prison term, has been set free? - one cannot but suspect the 
Pakistani judges can read the desires of whoever happens to a in power at the time - The 
judge who presided over the Lahore High Court which sentenced the former Prime 
Minister to death .... showed bias on several occasions .... whether or not he committed 
the crime of which he stands accused, Bhutto has not received a fair trial ". 

One is reminded of the observations once made by Mr. D.N. Pritt Q.C. the great English 
lawyer that the Executive rarely interferes with the Judiciary but some Judges know what 
judgements please the Executive and their judgements are often in conformity with their 
respective judicial philosophies which are rarely against the establishment. 

Amnesty International's position as regards Bhutto' s case: 

Judiciary in Crisis? Copyright © 85 

"The New government has introduced serious restraints on the independent functioning 
of Pakistan' s highest judiciary. Al has said that these amendments "deprived the high 
judiciary of their principal means of effectively and speedily remedying violations of 
individual liberties". 

It commented on the order of the 5th of July 1977 "The fundamental rights conferred by 
the Constitution and all proceedings pending in any court in so far as they are for the 
enforcement of any of those rights shall stand suspended". Al noted, however, that the 
Government' s order "includes the suspension of the right to life, the right not to be 
subjected to torture or to cruel, inhuman or degrading ding treatment or punishment, the 

freedom of thought These are rights from which no derogation is possible, even in 

times of a public emergency threatening of life of a nation as defined in Article 4 of the 
International Covenant on Civil and Political rights". The Al delegates have rioted the 
importance and values of the judgement of the Supreme Court in the Begum Nusrat 
Bhutto case it noted with anxiety the consequences of the particular difficulties the 
judiciary may find itself in a country of tension under a military rule. 

"Al believes that it is therefore important that all safeguards against such possible 
influences be taken and recommends that international observers from qualified 
international organisations be assured access to all further stages of the trial including the 
stage of appeal. It regrets the Lahore High Court's decision to conduct the last stage of 
the trial proceedings' "in camera". 

"Al believes that Mr. Zulfikar Ali Bhutto like other political prisoners, has the right to a 
fair and open trial and should be held in conditions which comply with the United 
Nations standard Minimum Rules for the treatment for Prisoners. During their visit, the 
Al delegates discussed with Government officials the reports it had received prior to their 
visit that Mr. Bhutto was not being given proper treatment in jail. In order to verify or 
deny these reports, Al requested the Chief Martial Law Administrator for permission to 
meet Mr. Bhutto in jail. Al was offered the possibility of meeting Mr. Bhutto in Court, an 
offer which Al delegates declined since it would not enable them to make an on the spot 
evaluation of the conditions of Mr. Bhutto' s detention. The Government refused the Al 
delegates permission to meet Bhutto in jail. Al therefore was unable to satisfy itself that 
Mr. Bhutto is being held in conditions which comply with International Standards. Al is 
very much concerned at the government's decision to refuse the Al delegates permission 
to meet Mr. Zulfikar Ali Bhutto in Jail". It will be noted that on the 1st April 1978 the 
Supreme Court rejected an application by Bhutto supported by his Counsel, the former 
Attorney General of Pakistan for relief from the conditions in Death Row, which Mr. 
Bhutto described as a horrible and insanitary place in a cell said to be 10 feet by 7 feet. 

Judiciary in Crisis? Copyright © 86 


The case and the trial, the appeal and what followed have been revealed to the reader. In 
the words of Lord Denning, there has been a cutting out of the dead wood and trimming 
off of the side branches, to prevent the readers from losing themselves in the thickets and 
brambles. In some measure the case against Zulfikar Ali Bhutto in its proper context has 
been outlined. 

Bhutto's trial will go down to history as the most important criminal trial of this century. 
It has many lessons to teach the students and teachers of law and of course the Judges as 
well. There is however a danger that it can be swept under the carpet and be cast away 
into the limbo of forgotten things. 

To sum up, the Judges of the Supreme Court accepted the position that the Martial Law 
Regime was a deviation from the Constitution which had not been limineed but only kept 
"in abeyance" out of State necessity to ensure the smooth working of the elections. Yet 
for one year and more, the elections had not been held after Bhutto's appeal was 
dismissed. The Constitution was in a fairly permanent state of abeyance. The judges 
ceased to owe allegiance to the Constitution "to preserve, protect and defend the 
constitution". The question may be asked whether for the purpose of holding elections, 
for the stability of the country and the independence of the judiciary the rights guaranteed 
under the Constitution such as the right to life, the right not be subjected to torture, 
inhuman or degrading treatment should necessarily have been suspended and punishment 
like flogging and amputation should have been introduced. Did the Supreme Court hold 
the view that all this comes within the doctrine of necessity? 

The situation in Pakistan with regard to the Supreme Court and its decision in Begum 
Nusrat Bhutto' s case needs special study by jurists. The Constitution certainly was not 
kept in abeyance. It was in a permanent state of abeyance. Bhutto more appropriately 
perhaps described that it was being kept in preservation like Pharoah' s mummy. 

The question also arises whether the Supreme Court and the High Court served any 
longer as a shield to protect the citizens from violations of human and Constitutional 
rights or did it become an appendage of a military establishment? This question again 
arises for study. It must be stressed with some emphasis that one need not agree with 
Bhutto's political philosophies to form the view that Bhutto was not proved guilty at the 
trial nor need one agree with the political philosophies of General Zia to hold that if 
Bhutto was unjustly convicted and hanged it was the sole responsibility of the judiciary 
and the judiciary alone. Whatever the prevailing circumstances General Zia cannot be 
said to have not left the question of Bhutto' s guilt to the judicial conscience of the judges. 
As mentioned earlier, the three judges of the Supreme Court who acquitted Bhutto in 
appeal did not deal with the question of bias and the political motives as they were not 
willing to accept the prosecution case against Bhutto but it is a matter for serious 
consideration how the four judges who dismissed his appeal sweepingly came to three 

Judiciary in Crisis? Copyright © 87 

conclusions without any reservations, viz. (1) There was no bias and a denial of 
substantial justice to Bhutto in the High Court; (2) The political considerations were 
irrelevant in the case; (3) The evidence of Masood Mahmood was acceptable and his 
evidence was amply corroborated. Their judgement with great respect lacked analysis and 
examination before they arrived at their conclusions in the judgement of the Chief Justice, 
it is most unfortunate that in the lengthy judgement of the Chief Justice with which the 
other 3 judges agreed, these 3 issues were dealt with rather summarily in the following 
manner: - 

(1) "In the light of the declared law and the facts discussed above, I have reached the 
conclusion that although some of the orders made by the trial Bench in the day to day 
conduct of the case may not have been correct on a strict view of the law, and some 
others may not have been called for in the facts and circumstances of the case, yet these 
were all matters within the discretion of the Court and mere error therein cannot amount 
to prove bias" (Para 915 of Chief Justice' s judgement). 

In other words, although some of the orders may not have been correct on a strict view of 
the law and some other orders may not have been called for, the Court had a discretion to 
make such orders which were not correct on a strict view of the law and to make such 
orders that may not have been called for in the facts and circumstances of the case. This 
is rather an astoundingly puzzling proposition and it is certainly a disturbing thought if it 
becomes a judicial philosophy especially in a criminal trial. The Chief Justice expunged 7 
paragraphs of the judgement of the High Court which he said were gratuitous 
observations regarding the accused such as "a Muslim only in name", "a consummate 
liar", "the arch culprit" who had "abused his powers under the Constitution for satisfying 
his personal inane craving for self aggrandizement and perpetuation of his rule", when 
these questions were not issues in the case. The language used, the orders made and the 
judicial behavior in all the instances if not singly, collectively reveal the attitude of the 
Bench and it is not so easy to dismiss them as not proof of bias. 

(2) The Chief Justice on the question of political considerations refused to treat them as 
relevant. He observed "the fate of the present appeal must depend not on the motive of 
those who re-opened the investigation of the case on the promulgation of Martial Law on 
the 5th of July 1 977, but on the strength or weakness of the evidence adduced in support 
of the allegation made by Ahamed Raza Kasuri in the First Information Report made by 
him as long ago as the 11th of November 1974 minutes after his father had breathed his 
last owing to injuries sustained during the attack on the complainant's car. If the requisite 
evidence satisfying the legal and judicial standards applicable in criminal trials of the 
present kind is available on the record to prove the guilt of the appellant, then the duty of 
the Court is clear irrespective of political considerations which might have led to the 
overthrow of the appellant's Government in July 1977 and the re-opening of the present 
case thereafter. The converse is equally true. If sufficient evidence is not available to 
sustain the convictions recorded against the appellant, they must be set aside regardless of 
any political consideration (para 32). The fallacies in the last three sentences have already 
been dealt with at pages 98-99. If political considerations are alleged as motive not only 
for the charge preferred against the appellant but on the question of witnesses falsely 

Judiciary in Crisis? Copyright © 88 

implicating him either out of fear or out of a desire to obtain a pardon by pleasing the 
investigators to catch their prize quarry on the eve of a general election, these 
considerations should have been examined in testing for instance the testimony of 
Masood Mahmood. They cannot be kept away from the judicial minds. It is not a 
question of supporting any political philosophy but a question of applying an additional 
relevant test to examine the credibility of a witness. Moreover it is a misdirection to 
equate the converse with the motive and credibility test. If there is insufficient evidence 
to support the conviction that is the end of the matter. On the other hand when there is 
sufficient evidence political considerations must have been treated as relevant on the 
questions before the judges. Why was Bhutto implicated by Masood Mahmood? Was 
Bhutto's conviction of relevance to the investigators and Masood Mahmood? Could the 
investigators have been chasing after Bhutto before the elections if they were to be held? 
Why was Masood Mahmood given a pardon when the force which was under his 
management was so hopelessly involved in the crime when he was the Director General 
of the force harassing politicians while being an adept according to Weltch at fabricating 
false cases. The Chief Justice had, with great respect misdirected himself when he held 
that political considerations were irrelevant and closed his mind and did not apply the 
political test to evaluate the case of the prosecution. In many cases political 
considerations are human considerations which determine human behavior on the part of 
investigators and witnesses in a subjective sense and they have nothing to do with the 
relative merits of political philosophies and the conduct of the Martial Law 
Administration. The investigations were not done by General Zia, the accused was not 
tried by General Zia and the appeal was not heard by General Zia. But the investigation, 
the prosecution and the trial were human exercises through human agencies prone to be 
influenced by human factors. It was unrealistic in the special circumstances of this case to 
dismiss political considerations as irrelevant. 

The Chief Justice misdirected himself further when he stated that the fate of the present 
appeal must depend not on the motive of those who re-opened the case after the 
promulgation of Martial law but on the strength or weakness of the evidence adduced in 
support of the allegation made by Kasuri on the 11th of November 1974, minutes after 
his father breathed his last. In the first place Kasuri 's statement on the 11th of November 
1974 was not an allegation against Bhutto that he was the killer. He related the 
undisputed incident in Parliament on the 3rd of June 1974 and the political motivation 
which quite unjustly was blown up as a murderous threat extended to Kasuri on the floor 
of the House. The words certainly were not a threat to kill. Kasuri' s evidence at the trial 
and his efforts to meet Bhutto along with his unsuccessful application seeking nomination 
thereafter to contest the March elections of 1977 on the PPP ticket whittles down and 
shrinks this blow up of the incident which was never in dispute. On the other hand it was 
Masood Mahmood alone who on his own was giving directions to Welch to eliminate the 
anti - State elements especially Kasuri at the time of the Cafe China Speech of Kasuri 
which attacked the Federal Security Force and the Government. Was the complaint of 
Kasuri of the 11th November 1974 really an allegation against Bhutto in so many words 
after all? Moreover how could the Judges close their minds to political and human 
behavior and test the strength or weakness of the witnesses? Could the Judges have 
turned a Nelsonian eye to the political realities influencing human conduct altogether? 

Judiciary in Crisis? Copyright © 89 

(3) The Chief Justice having thus held that political circumstances were irrelevant arrived 
at the conclusion the "In the circumstances I am fully satisfied that the High Court was 
right in placing reliance upon the testimony of approver Masood Mahmood corroborated 
as it by the mass of evidence discussed in the preceding paragraphs — This evidence 
fully implicates the appellant Zulfikar Ali Bhutto and Mian Abbas in this crime besides 
of course the aprover himself (para 660). This finding with regard to Bhutto has been 
arrived at after many misdirections and nondirections in the judgement of the Chief 
Justice, e.g. the discounting of political considerations as irrelevant, the failure to give 
due weight to the wrong orders of the High Court, the mis-directions on the law and the 
misapplication of the law to the facts of the case with regard to motive, corroboration and 
circumstantial evidence, the erroneous finding with regard to Kasuri' s subsequent 
anxiety to seek an audience with Bhutto and PPP nomination for the election, the 
erroneous finding with regard to the endorsements in PW3/16/D, the failure to examine 
the evidence of Masood Mahmood either as an ordinary witness or as 'an approver, 
treatment of the motive to kill Kasuri and the complaint of Kasuri on the 11th November 
1974 as the bed rock of the prosecution case and the failure to appreciate the significance 
of Welch' s evidence as helpful to the defence. It is not possible to say that the Judges 
would have arrived at the same finding against Bhutto without the abovementioned 
misdirections and non-directions. It is also difficult to say that Bhutto was proved guilty 
at the trial. That does not mean that this view must be accepted without examination. The 
readers and the people will of course form their own views each his own with whatever 
assistance given to the reader in this book. 

A deeper study of these questions referred to will enrich our jurisprudence and be a guide 
to judges of the future. 

In any case, to the common run of persons, the willingness of the judges to take an oath 
without allegiance to the Constitution appears strange indeed. 

It is hoped that this book will acquaint the public and the people of Pakistan with the 
salient facts of the case and help them to understand the case that was against Zulfikar Ali 

It is most appropriate to conclude this book with a quotation from Hazrat Ali' s famous 
epistle written many centuries ago which is good advice to any ruler at any time, "select 
for your Chief Judge one from the people who is by far the best among them - he who is 
not obsessed with domestic worries, one who cannot be intimidated, one who does not err 
too often, one who does not turn back from a right path once he finds it, one who is not 
self centered or avaricious, one who will riot decide before knowing the full facts, one 
who will weigh with care every attendant doubt after taking everything into full 
consideration, one who will not grow restive over the arguments of advocates and who 
will examine with patience every new disclosure of fact and who will be strictly impartial 
to his decision, one whom flattery cannot mislead or one who does not exalt over his 
position. But it is not easy to find such men.... give him a position in your Court so high 
that neither back biting nor intrigue can touch him". 

Judiciary in Crisis? Copyright © 



The epilogue is in the nature of a postscript. It is placed after the author has written his 
conclusions and the reader also had perhaps reached his conclusions about the case that 
was against Bhutto. 

The following are extracts from two books i.e. 

A. "If I am Assassinated" with an introduction by Pran Chopra and was 
published by Vikas publishing House Pvt. Limited (February 19791. 

B. "From my Death Cell" containing Bhutto's four day speech in the 
Supreme Court. It was Bhutto's swan song. This book was banned in Pakistan 
published by Orient Paperbacks with an introduction by Piloo Mody after Bhutto 
was hanged in April 1979. 

The following extracts are purposefully placed at the end of the book to enable the reader 
to return his/her verdict on the evidence presented by the prosecution, without 
considering what Bhutto had to say which he said so eloquently and so forcefully. The 
author has merely commented on these extracts to explain the topics. 

Zulfikar All Bhutto, after his arrest while in detention, during his trial and after, during 
the hearing of his appeal and thereafter, never gave the impression that he was dispirited 
and he showed no signs of distress or despair. To quote his own words - 

A. Extracts from "If I am Assassinated' with comments 

In Death Cell 

(1) "Since the 18th of March 1978 (i.e. the day he was sentenced to death by the High 
Court) I have spent twenty two to twenty three hours out of the twenty four in a 
congested and suffocating death cell. I have been, hemmed in by its sordidness and stink 
throughout the heat and rain of the long hot summer. The light is poor. My eye sight has 
worsened. My health has been shattered. I have been in solitary confinement for almost 
an year but my morale is high because I am not made of the wood which burns easily. 
Through sheer will power, in conditions that are adverse in the extreme, I have written 
this rejoinder. Let all the White Papers come. I do not have to defend myself at the Bar of 
public opinion. My services to the cause of our people are a mirror in front of them....". 

White papers 

It will be interesting, however, to note that at the time Bhutto was facing a trial in the 
High Court and while his appeal was pending he had to fight many other battles besides 
the vilification in the White papers against him and his regime. It was a clear case of 

Judiciary in Crisis? Copyright © 


contempt of the Court to vilify an accused person on matters that were relevant to his 

We find that Bhutto immediately filed the below mentioned document in the Supreme 

(2) In the Supreme Court of Pakistan 

Criminal Appellate of Jurisdiction, 

Criminal Appeal No. 11 of 1979 

Zulfikar Ali Bhutto 

Son of Sir Nawaz Bhutto, 

District Jail, Rawalpindi 

The State 


The undersigned respondent respectfully submits: 

1 . During the pendency of the present appeal and while it was being heard before this 
Honourable Court, the Government of Pakistan has come out with two white Papers one 
on the alleged rigging of elections in March 1977 and the other on the alleged misuse of 
the news media during the tenure of my Government. Obviously, the time for publishing 
the false fabricated and malicious allegations contained in the two White Papers has been 
deliberately chosen and is a calculated attempt to prejudice mankind against me and to 
prejudice the hearing of my case. The second White Paper on the media which was issued 
on 28-8-78 was in fact printed on 25-3-78 as would appear from the printing date on the 
front page and the cover on which another date was superimposed. 

2. That I am confined to in a death cell and have no access to the material needed to for 
effectively refuting the false and scandalous allegations in the White Papers. Nevertheless, 
with all my limitations, I have attempted to reply to the same in the following paragraphs 
to keep the record straight and for such action as this Honouable Court deems fit in the 
interest of justice. 


The Rejoinder 

The contents of these documents are a rejoinder to the accusations, fearlessly expressed 
and certainly the accused put the accuser in the dock. It is amazing how Bhutto in the 
circumstances he was placed was able to marshal the facts to meet the charges, from the 
Death Cell with a sentence of death hanging over him. It is unfortunate that the Supreme 
Court did nothing on Bhutto's petition while passively and helplessly allowing such 
situations in which Bhutto was driven to fence with his opponents both in and out of 

Judiciary in Crisis? Copyright © 92 

court. He did so with consummate skill, courage and eloquence. It was a forceful 
rejoinder to the barrage of propaganda against him. It was quite obvious that all this 
vilification whether true or false, wholly false or partly false, accurate or exaggerated was 
directed to prepare the people to treat Bhutto as a villain. The White Papers were freely 
distributed in the country and abroad to do damage to Bhutto on the eve of his execution. 
Bhutto's Counsel on the other hand tried his best to print and publish this rejoinder but it 
was blacked out in Pakistan. What is relevant to the trial of Bhutto is the references to the 
issues in the case and the conduct of the proceedings and we shall, confine ourselves to 
the relevant extracts on these matters. This is what he had to say about open trials: 

The Traditions of an Open Trial. 

(3) "The history of Europe and Britain is rich and replete in the traditions of an open trial. 
The Common Law considers an open trial as being an indispensable ingredient of justice. 
After a gallant struggle, the free people of America made certain that the rights of public 
trial becomes inviolable by incorporating it as the 6th Amendment to the Constitution. 
The maxim "justice must not only be done but also must be seen to be done" is an 
elementary and unimpeachable norm of law. During the murder trial, one judge made the 
profound observation, 'we are trying you and not the public'. On this illuminating remark 
the Chief Justice of Lahore High Court added, 'but he wants publicity'. What an irony. 
As I said at the trial in Lahore, 'forget the fact that I have been the President and Prime 
Minister of Pakistan. Forget the fact that I am the leader of the premier party of this 
country and I am facing a murder trial. Even the ordinary citizen... and I consider myself 
one... is not denied justice'. The sensitivity of the trial Judges on the exposure of their 
bias was more important for them than my life. If a trial for murder can be held in camera 
there is no need to hold any trial in public..." 

Bhutto refers to the refusal by the High Court to allow him to address after he heard the 
prosecution case summed up by the prosecuting counsel. 

Not given the right of reply 

(4) "Yet even in that convoluted and closed court, I was not permitted to put forward my 
defence. Orally I was informed in Kot Lakpat jail that my request to address the court 
after the prosecution case, was rejected. I was not a practising lawyer. From the 9th of 
January 1978 I was not being defended by lawyers. I have not heard the prosecution 
witnesses during my long illness and absence from the court. I had been insulted and 
humiliated by the court during the open trial for 3 months. The prosecution case had 
received the full blast of publicity. The trial had been converted into a secret conclave. 
The dice was completely loaded against me. But with all these harrowing handicaps, 
when I sought to address the closed court in defence of my life, I was not permitted 
because I wanted to hear the prosecution before replying as a layman, without legal notes, 
without the aid of law books and legal rulings. This preeminently reasonable request, this 

Judiciary in Crisis? Copyright © 


request for rough and ready justice was turned down.... This is the extent to which I have 
been made a victim of criminal injustice...." 

It was alleged often that Bhutto was guilty of contemptuous and arrogant conduct in the 
High Court. Bhutto replies: 

(f) "It is wrong to state that I did not try to co-operate with the trial Bench. Nothing short 
of my life was at stake. I had sense enough to extend co-operation and courtesy to those 
who would tell me that I should hang until I am dead. But the trial Bench wanted me to 
prostrate myself before it. That is why I had to tell the Bench that I would not crawl and 
cringe before it. A Muslim can only prostrate himself before his creator. But the Bench, 
in particular the Chief Justice was always rude, abrasive and insulting to me. In striking 
contrast, the Chief Justice was kindness itself to the confessing co-accused. He smiled at 
them. He enjoyed their rustic sense of humor at my expense. He was patient with them in 
a fatherly fashion. He would translate the questions in Urdu and Punjabi for them 
whenever he thought that they were unable to follow the English. The taunts, the frowns 
and shouts were reserved only for me. I was favoured with comments to "shut up", "get 
up" and "take this man until he regains his senses". In these circumstances to talk of 
cooperation is to ask for the patience of a saint...". 

The White Papers 

(6) Bhutto makes the following statement with regard to the circumstances and objective 
in the publication of the White Papers. "This so called White paper which has been 
thrown on the ground has come in the middle of my appeal against the death sentence. It 
has been distributed throughout the world. It has been extensively broadcast on the radio 
and television. Nasty and vicious editorials have appeared on it. Foreign journalists are 
being requested to publicise it. Ambassadors of Pakistan are holding receptions for the 
elite of the countries of their accreditation for the distribution of this document. It is a big 
extravaganza on a worldwide scale... the object is to vitiate the climate of opinion against 
me so that everyone from the humblest clerk to the mightiest court may be driven to one 
conclusion. In assessing the purpose and the intention, the objective and the aim, it can 
safely be said that a more vulgar and spiteful effort could not have been made to harass a 

The Capsule of secrecy 

(7) It was Bhutto' s complaint that what he has to say in defence to the alleged accusation 
are all put in "a capsule of secrecy" and blacked out. The only opportunity he had to 
defend himself was to put his case in the documents he filed in the Supreme Court. Those 
accusations were on his character and his politics presenting him as a villain and even 
touching on some of the facts adduced at his trial and appeal. It was most unfortunate 
again that the Supreme Court did not prohibit these publications or censure those 
responsible for the publication, and merely pigeon holed this document, and thereafter 
held that political considerations were irrelevant. In this document there is a reference to 

Judiciary in Crisis? Copyright © 


A.Z. Faruqui, the Secretary to the Election Commissioner who Bhutto states had tried to 
generate resentment and hatred against him. The said Faruqui is the nephew of N.A. 
Faruqui, the brother-in-law of the principal approver, Masood Mahmood. Does this 
relationship have any significance? The White paper contained a full chapter devoted to 
an allegation against Yahya Bakhtiar, the senior defence counsel for Bhutto in the hearing 
of the appeal. Bhutto puts forward a spirited defence for him and states, "On top of these 
bayonet pricks comes the White paper to single him (Bakhtiar) out as a special case. The 
aim is to destroy his image, to damage his credibility and character, to belittle him in the 
eyes of the people and to make judiciary and the Bar hostile towards him, to tell him to 
forget about Masood Mahmood and Ghulam Hussain and others because "charity begins 
at home". The aim is to embarrass him, to rattle him and upset him while he is arguing 
my appeal. In a single sweep, the falcon wants to carry the client in one talon and his 
counsel in the other....". 

Doctrine of necessity 

(8) With regard to the doctrine of necessity he stated as follows in this document which 
was submitted to the Supreme Court. The observations below would have certainly 
embarrassed the judges of the Supreme Court and the Attorney General. "The office of 
Attorney General during Martial Law is a slap on the face of law. There is no room for an 
Attorney General in a system without law: The White paper says that the Attorney 
General is considered to be the custodian of the rule of law. Under Martial Law the 
Attorney General has to tell the Supreme Court that the Constitution has been abrogated 
or suspended by his masters, that all laws have been subordinated to Martial Law. He has 
to say that necessity requires the people of Pakistan to eat pig's meat. During the 
necessity of the Second World War, the British people lived on fish and chips but 
Parliament did not close. London became a rubble with the deafening sounds of the V2. 
Despite the clash of arms, Lord Atkin had the courage to dissent on the curtailment of 
Liberty in Liversidge v. Anderson. In Pakistan, the Attorney General of the Junta comes 
to the Supreme Court to plead for the supremacy of a coup detat over the Constitution 
and or the supremacy of the rule of the Generals over the rule of law....". 

In the said document, Bhutto ably and remarkably, forcefully and argumentatively puts 
his accusers in the dock. It is a valuable document for the historians. It affords many 
lessons to all third world countries. But most parts of the contents are not too relevant to 
this book. The above statements in the document were not referred to earlier so that the 
readers may independent of Bhutto arrive at their own verdict and then as a matter of fact 
acquaint themselves with the statements of Bhutto.. Likewise, passing on to the speech 
which Bhutto made in the Supreme Court after the Counsel addressed the court. He spoke 
for 4 days, for 12 hours altogether at the conclusion of the hearing in the 3rd week of 
December, 1978. 

Here are certain portions of his speech which may be of relevant interest to the readers. 

Judiciary in Crisis? Copyright © 95 


(1) With regard to the motive evidence, he said this: "If the subordinate police officers 
were reluctant to mention the name of the Prime Minister in the F.I.R., I would not be 
aware of it. If today the name of the Chief Martial Law Administrator is mentioned in a 
murder case, I think the first reaction of the subordinate officers would be to take it easy 

or to consult his senior officer. After all, no ordinary person is being mentioned I am 

a politician I have myself faced virulent attacks since the time I became a member of 

the National Assembly in 1962. Even in this Assembly, the attacks made on me were far 
more virulent, far more aggressive. So it cannot be said that I was thin-skinned in politics 
and coming from a different profession I had trespassed into politics and could not 
tolerate the flood of bitter criticism. That would happen to a non-politician.... As a matter 
of fact, I am not even directly implicated in the F.I.R 

Burden of proof 

(2) He contemptuously dealt with the Public prosecutor having talked about high 
probability in a criminal case. "He had tried to draw quantum of proof from the law of 

tots With regard to the approver's evidence, Bhutto had this to say. "After all if there 

is an approver, the approver must first of all be a reliable witness in his own right, and 
after standing on his own legs he must be corroborated by material evidence, independent 
evidence and sufficient evidence which is not forthcoming at all in this case 

Bhutto's speech was mainly a political speech as he felt he was speaking more to the 
world and the people. He made full use of that opportunity and perhaps made it 
impossible for the Martial Law Regime thereafter to show him any sympathy on a 
question of commutation or mercy. 

Political persecution 

(3) Bhutto attacked the Martial Law Regime most forcefully and he stated that it was not 
mercy but justice he wanted. "I do not want pity from anyone and as I said earlier I do not 
want mercy. I want justice. I am not pleading for my life as such, not as a way of flesh, 
because everyone has to go. There have been so many attacks on my life. I was attacked 
at Sanghar. I escaped miraculously in Sadiqabad. Then in the Frontier tribal territories a 
bomb exploded just before I was to speak. There were at least 4 or 5 attempts in 
Baluchistan once by a Langah, who threw a hand grenade at me. So it is not life as life 
that I plead for. I want justice. This is a forged case it is a completely fabricated case... I 
want my innocence to be established. Not for the person of Zulfikar All Bhutto. I want it 
established on higher considerations for there has been grotesque injustice. All the crimp 
and colour of political persecution cannot be found in a more classical case than this....". 

Judiciary in Crisis? Copyright © 96 

B. Extracts from "From My Death Cell" and comments 

1 . In his speech in the Appeal Court Bhutto also states this with regard to the incident in 
Parliament in June 1974 and the complaint made by Kasuri soon after his father's death 
in the FIR "as a matter of fact I am not even mentioned in it. I have not been directly 
implicated. This does not make me an accused. This does not pinpoint me as the 
murderer of Kasuri's father. As Mr. Justice Waheedudhin (who fell ill most unfortunately 
for Bhutto) aptly pointed out, this may be the reason for the motive but it cannot be a 

2. To refer now to a far more significant passage in his speech, "Not that I would like to 
have any pity. I do not want pity from anyone and as I said earlier I do not want mercy. I 
want justice. I am not pleading for my life as such, not as a way of flesh because every 
one has to go. There have been so many attacks on my life.... at the Frontier tribal territories... four or five attempts at Baluchistan 

A Fabricated Case 

3. "This is a forged case. It is a completely fabricated case all the crimp and colour 

of a political persecution cannot be found in a more classical case than this In this 

connection I would like to speak of the bad treatment meted to me. Only a sick and 
depraved regime could have treated me like this. They keep on saying that I want to be 
treated like a Prime Minister; that I still think I am President. I am a very humble man. It 
is not a question of my wanting to be treated as President or a Prime Minister. I want to 
suppress that fact because that fact is responsible for the false and fabricated case. I want 
to forget that I was ever President or Prime Minister because that is the consideration, 
obsession that lies at the basis, of this case.... I have been called "compulsive liar". Where 
did I ever have the opportunity to address (given evidence) in the court, for it to be said I 
am a compulsive liar?...." 

4. "I am not a criminal but yet I am treated like a criminal. I am treated worse than 
the co-accused. I hear the sound of music, I hear their laughter in the death cell from 
which I cannot get out. For ninety days I have not seen the sun-shine or the light. On the 
1 5th of October when two prisoners ran away, I was locked up. What did I have to do 
with their escape? Where was the connection? I have not run away from my country...." 
Bhutto said he could have run away from his country but he did not. 

The Death Cell 

On the first day of his speech in the Supreme Court before the adjournment for the day 
Bhutto stated, "This is the first time I have come out of solitary confinement. I find it 
hard to adjust to the equilibrium. I can hardly stand". The Court was adjourned till 9 a.m. 
the next day. Mr. Yahya Baktiar suggested that the court resume its sittings at 9.30 a.m. 

Judiciary in Crisis? Copyright © 97 

The Chief justice, however, said that 9 a.m. will suit better as Mr. Bhutto was an early 

5. This provoked Bhutto to say "Early riser? I am not permitted to even sleep 

Fifty lunatics were kept near my cell for three months. They would shriek and scream all 
the time and I could hardly sleep. When I came to Rawalpindi first the game was to throw 
pebbles on my roof. At first I used to think perhaps I was dreaming but then during 
Ramazan I did not sleep at night. I used to wait for sehri (the meal to break fast) and then 
I heard the noise on the tin roof at intervals of 1 5 minutes and I realised that pebbles were 
being thrown on the roof. When that stopped, a new device was adopted. There is a 
parapet wall just close to my cell and there is a military guard posted there. So every now 
and then the guard jumps on the parapet with his boots and that terrible jumping noise 
like a heavy thud has replaced the pebbles. The noise comes twice and keeps on 
happening because apparently there is not one guard but several. I thought last night that I 
would be spared the ordeal as I was to come to court today but it happened all the same. 
You see, it is because of my spirit and my determination, it is because of my strong will 
and because I am a leader that I have been able to face this ordeal and have been able to 
come here. No ordinary man would have been able to come, an ordinary man would have 
disintegrated long ago. You did not know how haggard I am. I am finished. For twenty 
five days, there has been no water in the death cell. It was restored only yesterday. But if 
the Court so wishes, I can come at 9 o'clock or even at 8 o'clock. 

The order the Chief Justice made was that Bhutto be permitted to get ready in time. 
There is a reference to his daughter Benazir Bhutto which may be of some interest to the 

Benazir Bhutto 

6. "When I became seriously ill it was said that I should have asked the court for 

treatment. But when I asked for my daughter of whom I am exceptionally fond, for she is 
a chip of the same block and even if my sons fail me, she will not fail me, I was told that 
I was not within the jurisdiction of Court, that I was in detention under the Martial Law 
Regulation No. 12 and that the court had no control over me....". I should not just be 
buried in the name on that automatically. Why should I be? Here I cannot be responsible 
for the lapses or other defects of these people if the case is left untraced. I would like to 
know how many cases in these eighteen months have been untraced....". 

No vicarious criminal Responsibility 

7. "Every crime or wrong is not thrown on the doorstep of the President or the Prime 

Minister....". Bhutto's position was that he as Prime Minister cannot be made an accused 
for every crime dur-ing his regime. 

He is not involved 

Judiciary in Crisis? Copyright © 98 

8. "I am not involved. I am not concerned in it as a matter of tact. It was said that 
Masood Mahmood might have had his own motive for committing the offence. On that 
remark, the state counsel said half of his case had been proved. Half of your case had 
been proved against whom? May be against Masood, may be against the confessing co- 
accused but not against me. I say this because the defence is not obliged to give any 
counter reasons for motive. That is why I objected yesterday to the question of fabricated 
evidence in inverted commas in the order passed by the lower court. How can you say 
'fabricated' in inverted commas when the defence makes an application that it is 
fabricated? It is for the prosecution to prove beyond reasonable doubt that it is not 

9. "Ahamad Raza Kasuri' s statement in the FIR is his opinion". 

10. "Masood Mahmood says he meets me almost every day. He says that when I 
travel to Multan he is with me at Multan, when I travel to Quetta he is with me in Quetta. 
He is with me wherever I go because he is the FSF, he is everywhere. He says he has 
access to me. I have the green telephone, I use the green telephone. Why should I 
introduce this element, this foreign element into what the special public prosecutor, the 
late Mr. Anwar describes as "a close circuit crime"? If I was to be a criminal, I would not 
just throw the crime around like that and say "go and remind him that I gave him a 
message about Ahmad Raza Kasuri....". 

With regard to document 3/1 6D, Bhutto stated in answer to Court that photostats were 
kept because it was a party question whether or not Kasuri should join the party and it 
was not a question covered by the Official Secrets Act.... 

The document 3/16-D 

1 1 . "If I had considered that this document is going to save my life and is going to 
come to my rescue.... it would not have been in this form and shape, and it would not 
have been so worded.... crude language is used, harsh language is used.... My 
endorsement is 'he must be kept on the rails, he must repent, he must crawl before he 
meets me. He has been a dirty dog. He has called me a mad man. He has gone to the 
extent of accusing me of killing his father. He is a lick, he is ungrateful. Let him stew in 

his juice for some time....' . It was strictly a party matter If I wanted to establish an 

alibi, if I wanted my life to depend on this one document, I had a guilty mind, certainly I 
would not be placing solely my defence on this one obscene document which is such that 
I would have used in that event, very sedate words. This is spontaneous. I would not have 

called him a licker or a dirty dog... I would have tried to use the best language You 

can see from the spontaneity of the words that there is no question of my trying to rely on 
this little straw ". 

Why did the judges reject 3/1 6D? They had to perhaps on the ground that it was a forgery. 
If this document is genuine, it gives a lie to Saeed Ahmad' s evidence that Bhutto was 
trying to get Kasuri back into his fold. This finding is in the teeth of the evidence led and 

Judiciary in Crisis? Copyright © 


is an absolute misdirection on the part of the trial judges and the majority judges of the 
Supreme Court. 

Why engage unwilling conspirators? 

12. Bhutto said he need not have engaged the services of men who were dragging 
their feet to murder Kasuri. "Well, I have got men, under my command who will put 
Mehindi on their hands and Surma in their eyes and say 'we have done it' . Why should I 
go to these people and say ' For God' s sake do this' - Such a dirty thing and commit this 
sort of crime. I am not a murderer 


13. With regard to the first information report and the case being left untraced, Bhutto 
said this. If this case has not been traced, I should not just be buried in the name on that 
automatically. Why should I be? Here I cannot be responsible for the lapses or other 
defects of these people if the case is left untraced. I would like to know how many cases 
in these eighteen months have been untraced....". 

14. "This is not first case that has been untraced. The first Prime Minister of Pakistan 
was shot in this city of Rawalpindi no investigation was permitted. Then in the end, 
feeling the pressure of Parliament someone from Scotland Yard, a Mr. Urene, came for a 
short while. Mr. Urene gives a report from Scotland Yard saying he received no 
cooperation. Begum Liaquat Ali Khan was crying hoarse, "What has happened, where is 
my husband's FIR (first information report)? Where is my husband's investigation? But 
she was packed off as an Ambassador for life. I had many critics Rao Khurshid, Wali 
Khan and Asghar Khan.... I was not frightened. . . .It did not affect me. 

The Public Prosecutor At the Trial 

When Bhutto commented on the innuendos that have been made against him by the 
Special Public Prosecutor over the shooting of Sharpao, Asadullah Mangal and Rafiq and 
when he demonstrated in the appeal how he had no involvement with all this, the C.J. 
said this was not on record. Bakthiar submitted at this stage that the Special Public 
Prosecutor was allowed to address on it as the social realities of the day. The C.J. replied 
anyway the conviction was not based on these facts. If that were so why did he (the C.J. 
of the High Court) allow the Public Prosecutor to say all this? Bhutto's position was that 
there was lot of mud slinging on him in the trial Court. 

Judiciary in Crisis? Copyright © 


The Record At the Trial 

15. "Justice is higher that the record.... the record of the High Court is defective, 
tampered, tailored and manipulated and boycotted by me. There are great gaps on the 
record. In the judgement order in the Habeas Corpus application (supposed to be) given 
on the 5th of November, it has been said, "in view of the Supreme Court judgement" 
which was on the 10th of November...." 

"If you ask me to go by the tight rope of that record alone, then, I would submit that it 
will be an unnecessary hindrance...." 


16. "Mr. Haleem (the present C.J. of the Pakistan S.C.) observed that motive is the basis 
of the conspiracy. If motive is abolished, if motive is destroyed, if motive is gone the 
basis of the conspiracy itself falls...." 

17. Kasuri finally proves his point when he is asked, "How have you implicated Mr. 
Bhutto in the FIR", he answered, "This is my style 

18. "I saw yesterday in an hour that whatever your views, I was being heard. I am not 
a judge. I cannot judge what is in your mind but objectively I see that you are giving me a 
patient hearing. Thank God at least I have had a say. After one year I have at least been 
heard. We are very sentimental people. Now that you have done this favour to me, now 
that you have conceded my right to speak and be heard, you can hang me. I had no 
motive to kill this man or to have him killed. My fight is with big people on big issues 

Masood Mahmood 

19. With regard to Masood Mahmood, Bhutto asked why he should tell him to be on 

the right side of Vaquar They were both civil servants and he was after all the Prime 

Minister. Mahmood said in evidence that he was told by him to break up meetings of the 
opponents and to swell the crowd at the PPP meetings... what was I~ the necessity to do 
so when lakhs of people attended these meetings of the PPP? All this was not said in his 
earlier statements. It is subsequently he said so to fall in line with Kasuri. Bhutto also 
made a point that there was no need for him to send a message through Saeed Ahmad 
Khan to Masood Mahmood reminding him of the job he had entrusted to him after asking 
him whether he knew Kasuri. What was the need, he asked, for him to publicise a 
conspiracy thus and why should he when Masood Mahmood is constantly in touch with 
him personally and on the green telephone? He had left out all the material points in his 
two statements in August to the authorities. 

20. "Abdul Haq (his favorite officer) the man who played the role between him and the 
authorities" was with him along with his stenographer. Why he did leave out the material 

Judiciary in Crisis? Copyright © 


points which he alleged against him later? A full and complete statement was not made 
even when he was pardoned. Were they understandable or belatedly false improvements 
at the initiation of the Martial Law team of interrogators? Masood Mahmood says he did- 
not know Ghulam Hussain the arch planner and killer. One of the confessing co-accused 
was his body-guard.... he did not know any of them: 

"Ghulam Hussain happens to be his favorite. Ghulam Hussain is on duty in the National 
Assembly. Masood Mahmood says he is present there.... but he knows not any one of 
them. What did he know? He does not know the plan or the conspiracy. He is just asked 
to go and remind Mian Abbas. He claimed to be a 'conscientious man', a 'God fearing 
man' . This man is the main link in the conspiracy. Bhutto says he is supposed to have 
lost his temper with him.... it is all fiction. He would never have spoken to Masood 
Mahmood at 6.30 a.m. in Multan; it has been proved that it just could not have been done 
at 6.30 a.m. The I.G.P had phoned him at 8.30 a.m. and he was asked to telephone Bhutto 
as 9.30 a.m. Bhutto ridicules the evidence of Masood Mahmood that he tried to poison 
his food and threatened his children. 

21. "Am I threatening his wife and children while he remains in the FS F as Director 
General?" Nothing of the kind happened. There are certain opposition leaders who, 
Masood Mahmood says, threatened to hang him upside down. Does he expect anyone to 
believe both he and the opposition were trying to harm him and yet nothing happened? 

22. "He goes on foreign tours. I give him permission when he wanted to go. He goes on a 
long tour to the best of countries.... Belgium, France, England and Japan and he takes his 
wife with him....". Masood Mahmood warned him about danger to his children and their 
safety was entrusted to him and yet Bhutto is supposed to be threatening Masood 
Mahmood' s children....". He is lying with a capital L, says Bhutto. Seth Abid is related 
to him. He is married to Masood Mahmood's sister. It was Seth Abid's brother who sent 
meals to him in the camp jail. 

23. "For two years the authorities were trying to get hold of this smuggler (Seth Abid) 
and he disappears from Pakistan. He returns to Pakistan when Martial Law is imposed 
and he gets a pardon. All his cases are wiped out and his cases go untraced. He becomes 
clean... he has been exonerated. He is made a respectable citizen. He has got permission 
to open his bank. His income tax cases have been taken out. But Masood Mahmood does 
not know all this. Masood Mahmood's wife is a cousin of Mrs. N.N. Faruqui....and says 
"I do not know". ...what do you know then.. do not know Seth Abid, you do not 
know anything about the conspiracy. You do not know anything about the plot. You are 
not involved, you do not know Ghulam Hussain. You do not know anything. You are so 
innocent., this is the first time civil servants have been taken into custody immediately 
when Martial Law was declared. Next time perhaps the Judges might also be taken in 
who knows. 

Masood Mahmood denied about the interrogating martial law team.... he says they are the 
higher authorities. He makes a hundred page "clean breast to the Chief Martial Law 
Administrator" written with the assistance of a stenographer.... 

Judiciary in Crisis? Copyright © 


The Trial contd. 

Bhutto proceeded to his trial recounting all the unfortunate and ugly incidents which 
smeared the name of justice. The trial did not start till the 11th of October as some 
documents were not available. Already the incident of the 24th of September and the 
news item in the "Pakistan Times" created a situation. Later on he was not allowed to 
argue constitutional points. He was put behind a dock that was constructed. He was far 
away from his Counsel. It was a physical impediment. There were special police officers 
sitting like two vultures on either side of him. He was not close enough to his Counsel to 
give instructions.... 

Sympathy to bereaved family 

24. Bhutto stated. "You know, I genuinely expressed my feeling about the death of 
Mohammad Ahamad Khan.... both my wife and I sent telegrams of condolence to his 
family when the death occurred... I did not know the whole thing was going to be thrown 
on me subsequently if a person is harpooned with a false and fabricated case and 
convicted for a capital punishment, he also has feelings..." 

The Secret Trial and the Crisis 

24. With regard to the in camera proceedings Bhutto stated, " The Chief Justice gave 

virtually full assurance of the trial being an open trial. He said that I would be tried in the 
full light of day and according to common law tradition .... The Chief Justice also 
expressed the wish that Amnesty International would make an appearance to see how 
fairly the trial was being conducted. In view of this press conference, I would like to 
know from whence the secret trial. After all, I heard the prosecution for two and a half or 
three months. For two and a half or three months I sat in silence and when my time came, 
when my opportunity for defence came, why then at that point of time was the trial 
arbitrarily converted into a secret trial.... by taking this action, the Court was the gainer, 
but the Court was a loser by trying to shut a man who utters the words that a crisis of 
jurisprudence will be created if he is to be prosecuted, should be tried in camera. So now 
at this final stage a new reason has been attached for holding the trial in camera.... it is on 
record that the Chief Justice became a complainant against me. You know sometimes 
words are spoken in a lighter vein and moreover when it was suggested that I was 
supposed to have wanted Mr. Justice Rizvi to be bumped off and the words "Chief 
Justice" was used instead of ' Justice' , it was the Chief Justice who said in reference to 
his own self "the time of the Chief Justice has not come yet" It was very pleasant to see 
him with a smile on his face for the first time, so I also said in jest "yours will come 
too".... when I said in a pure jovial spirit "your time will come too". The time of all 
Muslims comes "he flew with a rage and told the S.P. on duty to file a complaint against 

Judiciary in Crisis? Copyright © 



26. Bhutto had this to say about the treatment of the prosecution case and the defence. 
"When there has been talk of evidence, it has always been the evidence of the prosecution 
whether or not the prosecution proved its case, the word fabricated used by me in 

reference to this case was put in inverted commas to put the word fabricated in 

inverted commas is an exposure if not a betrayal of the mind of the Trial Court" 

27. In connection with his illness Bhutto stated "In view of my illness an adjournment of 
2 days was granted. But I needed some time to recover 

Trial Proceeds despite absence 

Given my serious condition two days constituted hardly any adjournment. Then it was 
said by the Court that as a matter of grace one more day would be granted. But I needed 
some time to recover. One more day was not sufficient. Although not only my personal 
doctors but even the jail doctors and the Superintendent said that I was not well enough to 
attend Court, the case proceeded without me and 1 5 important witnesses including Welch, 
Asgher Khan and Vakil Khan were examined and cross-examined in my absence. When 
one is sick it is all the more difficult to give instructions so these witnesses can be said to 
have examined not only in my absence but also in the absence of instructions from me....". 

Remand Jail 

28. About the condition in remand Bhutto stated, "moreover, I was locked up in a room 
which was hardly conducive to recovery. There was open ventilation and it being winter, 
I was exposed to the cold and the wind which aggravated my condition further. My 
temperature rose to 102-103 and I was really in a bad shape.... 


But what happened when I attended the Court on the 6th and on the 7th (December and in 
winter)? The Court passed the order that henceforth we would sit from 8 o'clock in the 
morning till 4.30 in the evening every day including Thursday and the case would 
proceed on that basis.... it took almost an hour from Kot Lokpat to the High Court which 
meant getting up at 6 in the morning and returning to Kot Lokpat Jail at 5.30 in the 
evening after a tedious day without even a lunch break. What instructions could I 
possibly be expected to give in those circumstances especially since I had been ill for 3 

Bhutto also stated to the Supreme Court that when he wanted to see his wife and daughter, 
the Chief Justice of the High Court said "You are not in our jurisdiction". But when at the 

Judiciary in Crisis? Copyright © 


same time the Court wanted to cause him inconvenience and embarrass him gave orders 
to the DS P of Kot Lokpat jail.... He referred to all the insults heaped on him by the 
Court.... so much so that at one stage he did thump the table not realising that it would be 
construed as contempt of Court and said to the Court, "You are here to dispense justice. 
You are here to pass a judgement. You can pass any judgement you like but why do you 
want to insult me? Is it also a part of the Penal Code or Criminal Procedure Code that 
when you want to convict a man for murder then you must persistently insult him all 
along the Trial?...." 

Secret proceedings 

29. "Court reopened on the 9th of January and when I was coming out of the room in 
which I was made to sit before going to the Court, I was informed that I was wanted 
inside the chambers. Understandably taken aback, I went in and saw all the 5 Judges 
sitting there. They made a Court of the chambers. The C.J. told S. P. Zafrullah who 
accompanied me to sit down. There was another chair, so I also sat down. He 
immediately shouted at me to get up and said, "You are an accused, you are not supposed 
to sit down": So I was an accused and not supposed to sit down. I stood up. Then I was 
asked if the application was mine and if I had signed it. I replied in the affirmative. Then 
I was told to argue it. The application was an earnest appeal for a transfer.... I had never 
seen a Court sitting in chambers.... I was called alone into chambers.... then my lawyers 
were called and given a hearing of hardly five or ten minutes... When I wanted to 
supplement certain points, I was told, "You are a strange person. Sometimes you say you 
want lawyers and sometimes you say you want to talk yourself, make up your mind". I 
asked the Justice where the contradiction lay? I had earlier said that my lawyers should 
be permitted to argue the legal points and I would like to make some supplementary 
observations. At this the C.J. reported, "You know this is not Mochi gate". I wished it 
was Mochi gate but it was not. It was the chamber of the High Court.... Why was this 
application not heard in open Court.... Why had it to be a secret chamber trial?.... Now I 
come to January 24th (1978) when I was to answer questions under section 342. In the 
very beginning when I began my submission, I said, I would not speak on those aspects 
of the case which had a direct bearing or were relatable to my defence, my main interest 
being bias and mala fides. At this I was given assurance by the C.J. in open Court that I 
would have all the time to speak on those subjects when the final question, "Why this 
case against you?" was posed. On that assumption, on that basis, I proceeded to answer in 
a limited form....". 

Boycott of Proceedings 

30. When a Judge in appeal asked the pertinent question what he had in mind is not 
answering the other questions, Bhutto replied, "You see as far as I was concerned, I had 
boycotted the main trial as from January 1978. I had to go to the High Court a., I was not 
a free agent. Well, on the 25th of January I find that I was taken to an empty Court and a 
secret trial. I was absolutely at sea, I was bewildered. No order had been made, no order 
had been shown, no notice had been given. I was not aware of my rights. I was not aware 

Judiciary in Crisis? Copyright © 


if this was legal or not. A totally different impression had been conveyed to me on the 
24th. On coming to Court on the 25th, I found myself in an entirely new situation.... 

"The point is I wanted to consult my lawyers on the legality of a secret trial.... To my 
amazement, I found that it was secret only in terms of what I had to say. Everything that 
was said by the confessing accused during the course of the trial which continued to be 
held in camera right up to the end was not only reported but was given publicity on the 
television and radio. The trial was secret only as far as it concerned my person, secret to 
the extent that I should not even to be given the order of the 25th of January of which I 
learned only through the 'Pakistan Times' report that a subsequent order had been 

"The order of the 24th stated that the trial will be held in camera because I was going to 
make scurrilous allegations against the Court.... 


"You see, I wanted to bring out objective facts about bias.... Why should it have been 
assumed that I was going to scandalize the Court?.... This order does not justify the 
legality of the secret trial. This was pointed out to Court and so on the 25th a subsequent 
order was passed which seemed to have been brought in line with what I had said about 
secret trials according to common law and the order stated that disturbances were feared 
in Court. I say, the High Court of Lahore is a fortress. Some of you live in Lahore. You 
must have seen. It was a barricaded place, the roads were barricaded, the whole place was 
swamped with policemen, women police and army officers. It was not even possible for 
the advocates to gain access to the Court. How could it have been possible for anyone to 
create disturbances?.... This was mentioned in the order of the 25th to meet one of the 
conditions cited by me as being a prerequisite for a secret trial according to Halisbury. 

Thus we see that the order of the 24th was not based on correct facts even the press 

was blocked out.... I was asked to answer question 54, I replied that I was still on the 
question of the illegality of this trial which had become null and void long ago and was 
now completely illegal. At this Mr. Justice Aftab, said to me, "What has your speech got 
to do with the question that I have put to you? You answer my question. . . . So I just 
smiled and continued to speak (,n the illegality of the trial.... On the 7th of February, I 
was compelled to say that there were many gaps and lacunae in the record.... and it did 
not reproduce what I had said.... 

"I do not want to tire this Court but taking into account the Court's insistence to give all 
the benefits of the doubts to the prosecution, taking into account my illness and the 
treatment meted, is there one aspect, one element of this whole trial from its inception to 
its end and even after.... where prejudice of the Bench has not been shown?.... Here I 
would like to mention the C.J.'s personal insistence that I should be immediately taken to 
the Death Cell... So I was dragged to the death cell" 

Judiciary in Crisis? Copyright © 


The Death Cell 

31. Describing the conditions in and around his death cell which the authorities did not 
allow Amnesty International to visit, Bhutto stated, "The Fort was full of soldiers. They 
were hovering all over the place, even in the corridor. The corridor was full of refuse. 
One could hardly stand there. Then there were six cells - the death cell, a bathroom and 4 
other cells. Those four cells were fly-proof, the death cell was completely exposed not 
even a fly-proof It was summer. It was hot, my whole face was full of flies and 
mosquitoes. The room of the guards had fly-proofs. I am glad about that. I could at least 
have been given one too. I have still not got it. Then, the bathroom was completely open 
and I was expected to go there with people marching up and down all the time until this 
Court came to my rescue. I just refused to eat not that it was hunger strike as such, it was 
just that in those circumstances, I simply could not eat. Then this Court intervened and 
some facilities were accorded. A chik was put up for the bathroom and a switch was put 
inside my room to regulate the light which used to be on all the time. I could hardly come 
in to the corridor as I would be told to go in as my time was up. So I decided not to come 
out at all. After all my self respect was more important. I could not submit myself to 
every indignity, neither did I want to keep on complaining but in June, (1978) I fell ill 
and General Shaukat, an Army General, not a PPP man, was sent to see me. He had tears 
in his eyes when he saw me. The room was full of dust. The springs of the bed were 
jutting out. My back was examined; it was in a terrible state and had scars on it. When he 
went the bed was changed. And so the maltreatment continued. In contrast, the 
confessing co-accused have been given all the privileges and all the facilities". 

"They are next door, so I can hear them. Families come and go. I can hear the sound of 
music, laughter. As far as I am concerned, even the ordinary facilities are denied to me. 
You know a great deal has been constantly said about nobody being above the law. I do 
not want to be above the law. But I want my legal rights. I want to be under the law but I 
don't want to be underground the law". 

The Co-accused in the Supreme Court 

With regard to what the co-accused will say when they were given the opportunity to 
speak after him, Bhutto had something hard to say. These accused excluding Mian Abbas 
had all confessed to the crime. Their counsel had taken a very attractive defence and 
made their legal submission on the ground that (1) they were by mistake of fact made to 
think that they were bound by law to carry out the order to kill Kasuri. (2) They carried 
out that order under grave and imminent threat to their lives. (Vide chapter V) 

So that they had a fair hearing and their submissions were reserved for consideration. As 
far as Mian Abbas was concerned, his defence hitherto had been that he was absolutely 
innocent, and that the prosecution evidence against him was false and fabricated. In 
appeal, however, he submitted a written application doing a complete U turn and 
accepting the whole prosecution case and taking up the same defence as the rest of the 
accused. Bhutto made these observations on the role of co-accused at this juncture in the 

Judiciary in Crisis? Copyright © 


hearing of the appeal. "Yes, yes, I know and I will tell you why they have been brought 
here. They have had their full say in the High Court and all that they said have been 
published. (They had never implicated Bhutto personally so far). Because this court had 
given me permission to speak here, they have been brought here to neutralise me. I will 
tell the court exactly what they are going to say. 'The FSF was a terror force, they were 
helpless, they were not free agents'. You will hear a diatribe on the FSF, a diatribe on me 
and, of course, they will plead for mercy. One of them (Mian Abbas) has sent to this 
court a petition from jail that since he is going to his God that he would like to make a 
clean breast of things. If he is going to his God, then why ask this court for mercy for his 
life? If he is going to God Almighty, why does he want to fall at the feet of the court and 
want mercy from the court, he wants his life to be spared by taking the life of an innocent 

Bhutto finally concluded his speech, "I am certain you will uphold the Majesty of the 
law and never turn into matrons of Martial Law....". 

Judiciary in Crisis? Copyright O 108 

Although the Bhutto Trial is the most notable trial of the century, It is a trial about 

which the less is known. 

It is not in the interests of justice for some to say that Bhutto was guilty and for others to 
say that he was innocent, without knowing the facts of the case. There are some who even 
say that whether Bhutto is guilty or not, he should never have been hanged. This is most 
unfair to Bhutto. Never during the appeal or thereafter did Bhutto ask for mercy. In fact, 
he had strictly instructed his lawyers and the members of his family that no such 
application should be made. The purpose of this book is to assist the people to answer 
that one question. "Was Bhutto proved guilty at the Trial?" and the next question" Was 
there a fair trial without bias?" 

The author T.W. Rajaratnam is a former Judge of the Supreme Appellate Court of Sri 
Lanka and had been a Commissioner of Assize presiding over many murder trials before 
a jury. He is a Barrister at Law (Lincoln's Inn). He has practised at the Bar in Sri Lanka 
as an advocate for 22 years and has been a Judge for 8 years. He is a Graduate in Western 
Classics of the University of London. He has also been a teacher and writer. 

Judiciary in Crisis? Copyright ©